0120063372
03-07-2008
Jeanne F. Lane, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Jeanne F. Lane,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 01200633721
Agency No. YT-05-1050
Hearing No. 370-2006-00098X
DECISION
Complainant filed an appeal from the agency's final action dated
May 2, 2006, finding no discrimination with regard to her complaint.
The record indicates that complainant, a Quality Assurance (QA) Specialist
(Aerospace), GS-11, filed her complaint alleging discrimination based
on age (DOB: 4/2/1942), disability (physical), and in reprisal for
prior EEO activity when she was not selected for: (1) Supply Chain
Integration Specialist (DCMAW-04-2262); (2) Lead Acquisition Technical
Specialist (DCMAW-04-2933); and (3) Supply Chain Integration Specialist
(DCMAW-04-3583).
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On April
24, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged nonselections.
With regard to claim (1), the AJ stated that the agency made the
alleged selections based on the candidates' resumes and no interviews
were conducted. A selecting official (SO1) stated that he selected a
selectee (SE1) based on her prior experience in the military dealing with
the supply chain and because he had first-hand knowledge of her exemplary
work performance at the agency. Another selecting official (SO2) selected
another selectee (SE2) because of his background experience in the
Fleet Ballistic Missile, his ability to resolve issues with other agency
offices, and his outstanding job performance in Supply Chain Management.
The SE1 and SE2's resumes reflect that they had extensive specialized
training and awards. Furthermore, complainant did not demonstrate that
her qualifications for the positions at issue were plainly superior to
the qualifications of SE1 or SE2.
With regard to claim (2), the AJ indicated that SO1 selected a selectee
(SE3) because she had the skills and experience dealing with a variety
of different contracts which he was looking for in the position.
Complainant did not demonstrate that her qualifications were plainly
supervisor to the qualifications of SE3.
With regard to claim (3), the AJ indicated that a recommending official
(SO3) recommended a selectee (SE4) for the position over complainant
because she had a good understanding of subcontract management,
strong business background, was DAWIA qualified as a Level II Contract
Administrator, and had dynamic personal skills. The agency Operations
Group Chief concurred with SO3's recommendation and selected SE4
for the position. The SE4's resume indicates that she had extensive
special training and awards. Despite complaint's claim, SO3 stated that
DAWIA Level II certification was not required; rather candidates had 18
months to get such certification once they were selected. The record
contains the position announcement at issue supporting that argument.
The position announcement also indicates that candidates could further
obtain a waiver to extend this 18-month period to get the certification.
It appears, however, that the SE4's resume indicates that she was DAWIA
Level II certified.
Based on the foregoing, the Commission finds that complainant failed to
prove, by a preponderance of the evidence, that the agency's legitimate,
nondiscriminatory reasons for not selecting her for the positions at issue
were pretext for discrimination. Specifically, she failed to show that
her qualifications were plainly superior to the qualifications of the
selectees. See Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981);
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). It has been held that an agency has broad discretion to carry
out personnel decisions and should not be second-guessed by the reviewing
authority absent evidence of an unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). The Commission
does not address in this decision whether complainant is a qualified
individual with a disability. Furthermore, complainant clearly has not
claimed in her complaint that she was denied a reasonable accommodation;
nor has she claimed or shown that she was required to work beyond her
medical restrictions.
Accordingly, the agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court
appoint an attorney to represent you and that the Court 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 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
3/7/08
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
??
??
??
??
4
0120063372
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036