0120121723
08-20-2012
James I. Minger, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
James I. Minger,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121723
Hearing No. 410-2012-00031X
Agency No. 9R1M11050
DECISION
On March 6, 2012, Complainant filed an appeal from the Agency's March 12, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Production Controller with the Agency.
On February 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on October 8, 2010, he was notified that he was not selected for the position of Facilities Maintenance Supervisor, WS-4701-14.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object,1 the AJ assigned to the case granted the Agency's motion for a decision without a hearing, and found in favor of the Agency by summary judgment on January 31, 2012.
The evidence of record developed during the investigation of Complainant's complaint established that the Agency issued Vacancy Announcement Number 10AUG782690 in August 2010, soliciting applicants for the position of Facilities Maintenance Supervisor, WS-4701-14. Complainant was among the 29 applicants for the position.
A three-person interview panel (all Caucasian), that included the selecting official, was convened to interview the 15 candidates who had prior supervisory experience. Complainant was among those interviewed. The panel presented each of the 15 candidates with a list of four questions 15 minutes prior to each candidate's interview, followed by the candidates having 15 minutes to present their oral responses to the four questions. The record further indicates that the responses were evaluated by the panel and assessed a numerical score. The numerical scores were then input into a selection matrix from which the hiring decision was made by the Agency's selecting official.
The selection matrix demonstrated that the selectee had the highest score of 81 points while the Complainant had the eighth highest score of 72 points. The selecting official stated that he chose the selectee (Caucasian) because he was ranked the highest and thus was determined to be the best qualified candidate. The selecting official stated that while Complainant was qualified for the position, the selectee was picked because he had significantly more supervisory experience.
Complainant alleges that he was discriminated against on the basis of his race when he was not selected for the position based on the argument that he was better qualified as the selectee. Complainant stated during the investigation that he believed the selectee was preselected and the interviews were just a formality because the selectee "is their buddy. He is their go to fellow; they do things after hours together."
Based on this evidence, the AJ determined that the evidence did not support Complainant's assertion that he was better qualified than the selectee. The AJ determined that the evidence showed that the selectee had a long history of supervisory experience, while Complainant did not. At the time of the selection decision, the AJ found that Complainant was employed as a Production Controller, rated at the GS-9 level, while the selectee was working as an Electronic Industrial Controls Supervisor, rated at the WS-11 level. Other than Complainant's subjective belief that he was at least as qualified as the selectee for the position, the AJ found no evidence to support that assertion.
In its final order, the Agency adopted the AJ's determination that no discrimination had been proven. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and Complainant has not identified any disputes of material fact.
Here, we agree with the AJ's ultimate finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Complainant may establish a prima facie case of discrimination based on race, by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). The burden then shifts to the Agency to refut the initial inference of discrimination raised by the prima facie case by articulating a legitimate, nondiscriminatory reason for the decision at issue. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination, we find the Agency's witnesses articulated legitimate, nondiscriminatory reasons for the selection made as detailed above. Complainant failed to show that those reasons are pretext for discrimination. In non-selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. See, e.g., Hickman v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 01Aaa797 (December 20, 2001). While the evidence showed that Complainant was qualified for the position in question, he has not established that his qualifications were "demonstrably superior" to the selectee's such that it is clear that Complainant should have been selected over him. Accordingly, we find that Complainant has not established pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final Agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2012
__________________
Date
1 Complainant has objected to the fact that his attorney was not served with the Agency's motion for a decision by summary judgment. However, the record shows that AJ's acknowledgement order required all representatives to file a notice of appearance, but no appearances were made by any representative on behalf of Complainant. Thus, we find that Complainant's counsel failed to make an appearance during the hearing process as counsel of record, and do not find an error in the Agency's serving only Complainant with its motion.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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