0120070810
09-04-2008
Joseph W. Gero, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Joseph W. Gero,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120070810
Hearing No. 570-2006-00036X
Agency No. FWS-05-020
DECISION
Complainant filed an appeal with this Commission from the November 22,
2006 agency decision which adopted the September 28, 2006 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleged that the agency discriminated against him on the
basis of age (63) when: on February 26, 2005, he was notified that his
application had not been referred to the Selecting Official for the
position of General Biologist/Training Specialist, Vacancy Announcement
No. FWS9-04-60.
At the conclusion of the investigation, complainant requested a hearing
before an AJ. Over the complainant's objections, the AJ granted the
agency's motion for a decision without a hearing (summary judgment).
In her decision, the AJ noted that she was accepting the agency's
findings set forth in its motion for summary judgment. The AJ also
accepted the agency's conclusions that complainant had not presented a
prima facie case that the agency had discriminated against him because
of his age and, further, that the agency had articulated legitimate,
nondiscriminatory reasons for its actions.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case where the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
Because this is an appeal from a decision issued without a hearing,
the agency's decision is subject to de novo review by the Commission.
29 C.F.R. � 1614.405(a). The Commission is free to accept, if accurate or
reject, if erroneous, the AJ's, factual conclusions and legal analysis,
including on the ultimate fact of whether intentional discrimination
occurred, and on the legal issue of whether any federal employment
discrimination statute was violated.
Upon review, the Commission finds that the grant of summary judgment
was appropriate. Complainant has failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits was warranted. Specifically, the Commission finds
that the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
The record contains the vacancy announcement for Vacancy Announcement
No. FWS9-04-60. The Vacancy Announcement reveals that the position
was also open under Vacancy Announcement No. FWS9-04-59 as an Outdoor
Recreation Planner, GS-0023 and that if an applicant were interested in
applying as an Outdoor Recreation Planner, the applicant had to apply
separately under Vacancy Announcement No. FWS9-04-59. The Vacancy
Announcement for Vacancy No. FWS9-04-60 also reveals that there was only
one vacancy which would be filled, the General Biologist (0401) or the
Training Specialist (1701), or the Outdoor Recreation Planner, GS-0023.
The record reveals that complainant applied for both the General Biologist
and Training Specialist positions but did not apply for the position of
Recreation Planner under Vacancy Announcement No. FWS9-04-59. The record
reveals that the selectee applied under Vacancy No. FWS9-04-59.
The record contains the affidavit of a Lead Human Resources Specialist
(HRS) who oversaw the merit selection process in this matter for
Human Resources. She stated that she followed the same merit selection
procedures as she had followed in the past for other merit selections.
The HRS also stated that to qualify for the position, complainant had
to meet basic requirements as either a General Biologist or Training
Specialist and meet the specialized requirements described in the
Vacancy Announcement. She determined that complainant did not meet
the specialized experience requirements, noting that he had to have
demonstrated in his application that he had specialized experience
equivalent in scope, level, and difficulty to grade level GS-11. The HRS
stated that specialized experience was experience which equipped an
applicant with the particular knowledge, skills, and abilities (KSA)
to perform successfully the duties of the position and experience which
was typically in or related to the work of the position. She determined
that complainant's application did not list the knowledge and skills to
qualify him for the position.
The HRS stated that after notifying complainant that he had failed to meet
the minimum qualifications, complainant called and asked her to review
his application again. She stated that she did so and she came to the
same conclusion that complainant did not meet the necessary specialized
experience. The HRS also stated that she followed the agency's standard
practice which permitted her to let another HRS review the application
if the applicant questioned the determination that the applicant was not
minimally qualified. She stated that HRS-1, who worked as a team leader,
reviewed complainant's application independently and reached the same
conclusion that she had. The HRS stated further that when she contacted
complainant to inform him of her conclusion, complainant contacted her
then supervisor (who no longer works for the agency) and sent her a copy
of his application with areas he believed would establish that he had
the necessary specialized experience highlighted. She stated that her
supervisor concluded that complainant had the specialized experience.
The HRS also stated that by the time her supervisor reviewed
complainant's application, a three-person panel had already met and
rated all the applications of the qualified applicants; however, the
certificate of top rated candidates had not yet been transmitted to the
Selecting Official. She stated further that because it was not easy
to bring the panelists together quickly, she sent each panelist a copy
of complainant's application package and asked each to rate complainant
using the same criteria that the panelists had used previously to rate
the other applications. The HRS stated that the panelists returned
their ratings and she totaled the scores, as she had done with the other
applications rated by the panel. She stated also that complainant,
as an applicant from outside the agency, was on the outside candidate
certificate. The HRS stated further that because complainant's score
was below that of the three outside candidates, his name was not placed
on the certificate which was sent to the Selecting Official.
Regarding the panel's procedure, the HRS stated that each member
rated each candidate on each KSA. She also stated that if there was a
significant difference between the ratings on a KSA for an applicant,
the panel had to discuss the reasons for the rating. The HRS stated
further that after discussion, a panelist could reconsider and change
his or her rating. She stated also that this reconsideration process
was standard practice. The HRS stated that because the panel members
reviewed complainant's application individually and not as a panel,
she reviewed each panelist's scores against one another and determined
no significant differences existed for any KSA which would require any
further discussion by the panel.
The record contains the affidavits of the panelists. Their affidavits
reflect that they reviewed all applications, including complainant's which
was reviewed separately, by assessing qualifications and scoring each of
the six KSAs individually according to a Crediting Plan. The panelists
rated complainant below the top three applicants. The record also reveals
that the best qualified applicants were determined by the highest total
scores as rated by each panelist.
Where, as here, the agency has articulated legitimate, nondiscriminatory
reasons for its action, a prima facie inquiry is not necessary.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983). We find that the complainant was not referred for the position
because he was not among the top three best qualified candidates on
the certificate for outside applicants. The lowest score of the top
three candidates was 68. Complainant's score was 57, even with points
included for Veterans Preference. His score was below the scores of the
three top scoring candidates and the scores of other applicants who were
not referred. Complainant has not shown that the agency's reasons for
its actions were pretextual, including whether his qualifications were
plainly superior to the top qualified candidates. Complainant also has
not shown that the agency was motivated by discriminatory animus when
it did not refer him.
Accordingly, the Commission finds that complainant has not shown that the
agency discriminated against him. At all times, the ultimate burden of
persuasion remains with complainant to demonstrate by a preponderance of
the evidence that the agency's reasons were pretextual or motivated by
intentional discrimination. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). Complainant failed to carry
this burden. An agency has broad discretion to set policies and carry
out personnel decisions, and it should not be second-guessed by the
reviewing authority absent evidence of unlawful motivation. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
The focus is on the agency's motivation, not its business judgment.
See Thomas v. Department of Transportation, EEOC Appeal No. 01945798
(December 12, 1996) (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1012
n.6 (1st Cir. 1979)).
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 4, 2008
__________________
Date
2
0120070810
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120070810