07a00032
01-08-2001
Jeffrey Smith, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
Jeffrey Smith v. Department of Justice
07A00032
January 8, 2001
.
Jeffrey Smith,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 07A00032
Agency No. P989479
Hearing No. 280-99-4307X
DECISION
Following its April 15, 2000 final action, the agency filed a timely
appeal, which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its refusal to
implement a decision issued by an EEOC Administrative Judge, without a
hearing, which found that the agency discriminated against complainant
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. on the bases of sex (male) and race
(Caucasian) when on March 23, 1998, complainant was not selected for a
Human Resource Assistant position (Vacancy Announcement No. 98-GRE001).
For the following reasons, we REMAND the complaint for a hearing.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a senior correctional officer at the Federal Correctional Institution
in Greenville, Illinois. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint on May 25, 1998. At the conclusion of the investigation,
complainant was provided a copy of the investigative file and requested a
hearing before an EEOC Administrative Judge (AJ). On February 15, 2000,
the agency filed a motion for findings and conclusions without a hearing.
The AJ considered the motion as a request for summary judgment, and
on April 15, 2000, the AJ issued a decision without a hearing. The AJ
found that complainant established discrimination on the basis of his
race and sex.
In her decision, the AJ concluded that complainant established a
prima facie case of race and sex discrimination because the selectee,
a Hispanic woman, is not a member of complainant's protected classes.
However, the agency proffered a legitimate, nondiscriminatory reason for
the non-selection; namely, that the selectee was better qualified for
the position. The AJ concluded that the agency's proffered reason was a
pretext for discrimination. In so finding, the AJ noted that complainant
had �...both qualitatively and quantitatively superior qualifications
for the position.� Accordingly, the AJ entered summary judgment in
favor of complainant. The agency now appeals the AJ's decision.
FINDINGS AND ANALYSIS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of
the non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
While we note that in a non-selection case, pretext may be demonstrated by
showing that complainant's qualifications are observably superior to those
of the selectee, Bauer v. Bailor, 647 F.2d 1037. 1048 (10th Cir. 1981);
Williams v. Dept. of Educ, EEOC Request No. 05970561 (August 6, 1998),
we find that the AJ erred when she concluded that there was no genuine
issue of material fact in this case. Although the complainant persuaded
the AJ that his experience in human resource management made him the
overwhelmingly superior candidate for the position, the record indicates
that the agency disputed this conclusion. It is well settled that in
indirect evidence cases such as this, the agency's only obligation is
to state the reasons for its action. The agency did so by stating that
the selectee had superior qualifications, noting inter alia that the
selectee is a college graduate, former Captain in the United States Army
and is bilingual. By comparison, the agency points out that complainant
is not a college graduate, is not bilingual and obtained most of his
experience in the United States Army where he did not obtain the rank
of Captain. Therefore, in the instant case we find that the agency met
its burden of articulating a legitimate nondiscriminatory reason for its
actions and that a reasonable fact-finder could find that complainant
was not observably superior to the selectee. We also conclude that
these qualifications are material to the outcome of the instant case.
In the circumstances, we find that the agency's proffer is sufficient to
satisfy the agency's burden of production, to articulate a legitimate,
a non-discriminatory reason for complainant's non-selection. Compare
Young v. Department of the Treasury, EEOC Request No. 05940517 (October
13, 1995). The burden therefore should shift to complainant, who has
the burden of demonstrating that the agency's proffer is a pretext
for discrimination. St. Mary's Honor's Center v. Hicks, 509 U.S. 502
(1993). Instead, the AJ rejected the agency's proffer and entered summary
judgment for complainant. In so doing, the AJ appears to have placed
the burden on the agency to prove that it did not discriminate against
complainant. This is improper without direct evidence of discrimination.
See EEOC Revised Enforcement Guidance on Recent Developments
in Disparate Treatment Theory, EEOC Notice No. 915.002 (July 7,
1992). The agency's only obligation was to state legitimate and
non-discriminatory reasons for its actions.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence not
specifically discussed in this decision, the Commission REMANDS the matter
for a hearing in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the St. Louis
District Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint
in accordance with 29 C.F.R. � 1614.109 and the agency shall issue
a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
January 8, 2001
Date