0120102092
09-11-2012
Jeanne F. Lane, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
Jeanne F. Lane,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120102092
Hearing No. 550-2007-00430X
Agency No. YM-06-0136
DECISION
Complainant filed an appeal from the Agency's May 18, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
During the period at issue, Complainant worked as a Quality Assurance Specialist, GS-11, at the Agency's facility in Sunnyvale, California.
The record reflects the following chronology of events.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability,1 age (64), and in reprisal for prior protected EEO activity when:
1) Complainant was not selected for the position of Quality Assurance Specialist, GS-1910-12, vacancy announcement no. WTH306279897;
2) Complainant was not selected for the position of Quality Assurance Specialist, GS-1910-12, vacancy announcement no. WTHo601429; and
3) Complainant was removed from performing Corrective Action reports (CAR) on November 27, 2006.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 7, 2007, the AJ issued a decision without a hearing in favor of the Agency. Complainant appealed this decision to the Commission's Office of Federal Operations (OFO). The Commission found that summary judgment on claims (1) and (2) was improper and remanded these matters for a hearing. Lane v. Dep't of Defense, EEOC Appeal No. 0120080925 (Dec. 18, 2009).3 Regarding claim (1), the Commission stated "we find that the AJ erred by accepting, as credible, SO's assertions that she tried to contact Complainant, during the relevant time period, at home and at work."
Regarding claim (2), the Commission found that the record was not adequately developed for summary disposition. Specifically, the Commission noted that the investigator indicated that the Agency did not provide a copy of the interview questions, panel notes, or panel recommendations. The Commission stated "[w]e remind the Agency that the Agency's burden, while not onerous, must provide a specific, clear, and individualized explanation for the treatment accorded the complainant that frames the factual issue with sufficient clarity so that Complainant will have a full and fair opportunity to demonstrate pretext."
The remanded matter was subsequently assigned to the same AJ who had issued the 2007 decision, and on April 5, 2010, the Agency filed a Motion for Summary Judgment. On April 30, 2010, the AJ granted the Agency's Motion for Summary Judgment. The AJ noted that Complainant had presented sufficient evidence to raise a genuine issue of fact as to whether Complainant is substantially limited in the major life activity of walking. Thus, the AJ found that Complainant was an individual with a disability.
Regarding claim (1), the AJ found that regarding the initial selection process for this position, the selecting official (SO) reviewed the applications of the candidates and followed the ranking process consistent with advice from Human Resources. The AJ noted that when the initial selectee turned down the position, SO decided not to make a selection from the remaining pool of applicants.
Regarding the re-announced position, the AJ found "Complainant has not provided any evidence whatsoever to refute the Agency's explanation for her nonselection; namely that she was not considered because she did not respond to multiple messages to contact [SO] to schedule an interview. While Complainant speculated previously that SO must not have called her since her phone number had not changed, Complainant does not now make any claim, or provide any evidence, that the phone numbers contained in the documents presented by the Agency showing [SO's] efforts to contact her are not the correct phone numbers. Nor does she dispute that an email designated 'high' importance was sent to her on Monday, December 11, 2006, indicating that [SO] already had tried to contact her by phone and that she should contact her as soon as possible because interviews would be held on December 13-14, 2006."
Regarding claim (2), the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's nonselection. Specifically, the AJ stated "[a]s the actual interview notes show the panel considered [the selectee] to be the top choice because he gave methodical/detailed responses with examples for each question/confident/left no stone unturned/good speaker...Complainant was not rated one of the top three among the 17 candidates interviewed for the position. Complainant was not recommended based on her weak responses to questions during the interview."
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the AJ's decision without a hearing in favor of the Agency is improper. Complainant asserts that she submitted her responses to the Agency's discovery to the AJ, but that they were not considered.4 Complainant reiterates that she was not contacted for an interview with respect to the position at issue in claim (1).
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.
Upon review of the record, we find that the AJ properly issued a decision without a hearing because there is no genuine issue of material fact in dispute.
Regarding claim (1), we find that the AJ articulated legitimate, nondiscriminatory reasons for its actions. Regarding the initial selection process, the record contains an email from Agency Counsel. Therein, AC asserts that the SO provided the following information regarding the initial selection process for the subject position: "[a named individual] was selected and declined the position because no PCS was offered and she was returning from overseas. No [interview] panel.5" In addition, the record contains a Declaration Under Penalty of Perjury from a Human Resources Specialist (HR1). Therein, HR1 provides that according to the collective bargaining agreement, if declinations reduce the number of qualified promotion candidates to fewer than three, the selecting official may request the recruitment effort be renewed and previous applicants need not apply to receive consideration. In the instant matter, HR1 asserts that the SO had reported that several of the applicants declined interviews, that several other applicants were not selected based on the (SO's) discussion with their current supervisor, and one applicant declined the position. Upon review of the record, we find that Complainant did not establish pretext with respect to the Agency's articulated reasons.
The Commission finds that the Agency provided legitimate, nondiscriminatory reasons for the re-announced position at issue in claim (1). The record contains a Declaration Under Penalty of Perjury from SO. Therein, she asserts that she tried to contact Complainant to interview for the re-announced position; however, Complainant did not contact her until after the interviews were already completed. We note that the record contains a copy of an email from SO to Complainant dated December 11, 2006. Therein, SO asserted that "I am setting up interviews for the GS-1910-12 position on [December 13 and 14 , 2006]. I have left voice mail messages for you at your home and work numbers. If you would like to be interviewed for the position, please call me as soon as possible." The record also contains an affidavit from Complainant's supervisor. Therein, the supervisor asserts that SO contacted her in an effort to locate Complainant to set up an interview. In addition, the Agency included with its Motion for a Decision Without a Hearing, the Web Based Referral list for the subject position. The list contains SO's handwritten notes when setting up interviews. The handwritten note next to Complainant's name provides "left message at home [number], work [number] and email, no response."
The list also contains Complainant's home and work telephone numbers. We note that the AJ properly noted, in her decision, that Complainant did not provide a response to the Agency's Motion for Summary Judgment within the designated timeframe. We find that the AJ in her decision properly noted, in pertinent part, that "[w]hile Complainant speculated previously that [the SO] must not have called her since her phone numbers had not changed, Complainant does not now make any claim or provide any evidence, that the phone numbers contained in the documents presented by the Agency showing [SO's] efforts to contact her are not the correct phone numbers. Nor does she dispute that an email designated high importance was sent to her on Monday, December 11, 2006, indicating that [the SO] already had tried to contact her by phone and that she should contact her as soon as possible because interviews would be held on December 13 and 14, 2006." Upon review of the record, we find that Complainant failed to establish pretext with respect the re-announced position set forth in claim (1).
Regarding claim (2), once this case was remanded to the AJ, the Agency submitted additional information regarding the subject position, such as the interview notes. The Commission finds that the record is now adequately developed for a decision without a hearing. The Commission further finds that Agency articulated legitimate, nondiscriminatory reasons for Complainant's nonselection. The Agency submitted with its Motion a supplemental declaration under penalty of perjury from SO. Therein, SO asserts that the selectee for the position at issue interviewed well and that he was current on his NASA certifications and had excellent communications and writing skills. The interview notes reflect that Complainant was not among the top three candidates for the position. In addition, the interview notes provide, in pertinent part, that the selectee provided "methodical detailed responses with examples for each question." Upon review of the record, we find that Complainant failed to establish that the Agency's articulated reasons for her nonselection were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order implementing the AJ's decision without a hearing in favor of the Agency.
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
September 11, 2012
Date
1 For purposes of analysis only, we assume, without finding, that Complainant is an individual with a disability.
2 In the Report of Investigation (ROI), the investigator noted that Complainant had initially included another non-selection claim, but she withdrew this claim during her interview on May 24, 2007.
3 In its decision, the Commission noted that "as there are genuine issues for trial as to issues (1) and (2), we decline to reach a determination concerning issue (3) at this juncture. Accordingly, issue (3) shall be addressed by the [AJ] to whom the case is assigned." The Commission notes that Complainant with respect to the instant appeal did not address claim (3); thus, we decline to address it further herein.
4 The AJ, in her decision, noted that Complainant sent her a letter stating that she had submitted her discovery responses to the AJ. The AJ stated that the Acknowledgment and Order in this case specified that any document sent to the AJ must also be sent to the opposing party or will not be considered and that Complainant failed to submit her responses to the Agency. We note that even if we were to consider Complainant's responses to the Agency's discovery, it would not alter our decision herein.
5 The Commission notes that the record contains a Declaration Under Penalty of Perjury from one of Complainant's co-workers. While he asserts that the SO contacted him about the initial position, which he declined interest in, the record does not reflect that he was actually interviewed for the initial position.
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0120102092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102092