01A31244r
03-15-2004
Joyce G. Hazelwood, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Joyce G. Hazelwood v. Department of Defense (Defense Finance and
Accounting Service)
01A31244
March 15, 2004
.
Joyce G. Hazelwood,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A31244
Agency No. DFAS-PSO-IN-99-005
Hearing No. 340-A0-3561X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that in fiscal year 1998, the agency issued a
vacancy announcement (CIP-008) for a GS-0510-7/11 Accountant Intern in
its Centrally Managed Career Intern Program. The announcement opened
November 17, 1997, and closed December 8, 1997. The announcement stated
that applicants were required to possess a minimum of 24 semester hours
in accounting by the closing date of the announcement. The Personnel
Management Specialist (S1) at the Agency's Human Resources (HR) office
in Denver, Colorado rated and ranked the applicants for the Intern
Program. She also checked the education requirements. The applications
rated �qualified� were subsequently transferred to the agency's HR
office in Indianapolis, Indiana. The record further reveals that the
agency issued another vacancy announcement for a GS-7/11 Accountant
Intern in its Centrally Managed Career Intern Program (CIP-FM009).
This announcement opened on November 2, 1998, and closed on November
23, 1998. Applicants were again required to possess 24 semester hours
in accounting. The Personnel Staffing Specialist (S2) in Indianapolis,
Indiana rated the applications for Vacancy Announcement CIP-FM009.
Complainant applied for both Vacancy Announcements CIP-008 and CIP-FM009.
The agency rated complainant unqualified for both announcements because
it found that she lacked the requisite semester hours in accounting.
Complainant, an Accounting Technician, GS-0525-06, in the Accounting
Operations Division at the agency's San Bernardino, California facility,
filed a formal EEO complaint on May 13, 1999, alleging that the agency
discriminated against her on the bases of race/color (African-American),
sex (female), age (born September 5, 1945), and in reprisal for prior
EEO activity (arising under Title VII) when:
(1) On or about January 14, 1998, the agency rated complainant's
application "not qualified" for not fully meeting the education
requirements for the position of Accountant, GS-0510-09, which is part
of the agency's centrally managed intern program; and
On or about January 22, 1999, the agency again rated complainant's
application "not qualified" for not fully meeting the educational
requirements for the position of Accountant, GS-0510-09, which is part
fo the agency's centrally managed intern program.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency moved for a decision without
a hearing. The agency's motion cited the following matters as material
facts:
In 1996, the agency established a regionalized personnel servicing
concept. The potential for disputes over qualifications issues increased
since on-site personnel lists no longer had immediate access to official
personnel records. The agency recognized the importance of the need for
human resources (HR) professionals to employ a consistent interpretation
and application of all qualifications standards.
In February 1997, the General Accounting Office (GAO) issued the third in
a series of reports on its special effort, begun in 1990, to review and
report on federal program areas and work identified as high risk because
of vulnerabilities to waste, fraud, abuse and management. The report
identified critical deficiencies in the Department of Defense's financial
management operations, including the lack of a professional financial
management workplace. As early as July 1996, the GAO confirmed that
DFAS had acted on GAO recommendations to develop several major programs
to ensure the professionalism of its financial workplace.
In response to the GAO's findings and recommendations, the agency
established an initiative to professionalize its finance and accounting
workplace. As part of the initiative, personnel representatives started
an across-the-board review of the qualifications of all DFAS accountants
and auditors. The initial findings indicated that in the past, there has
been a wide disparity in the application of the accounting qualifications
standard, particularly when crediting education. Situations had been
discovered where accountants had been improperly credited for college
courses for military education, or for courses that were duplicative.
These findings were shared with the general workforce in a memorandum
issued by the DFAS Director in November 18, 1998.
The Complainant's initial application for a GS-0510-7/11 position came
in the November 1997 timeframe, prior to the DFAS Director's memorandum
in November 1998, but after the agency had initiated its efforts to
professionalize its workforce in July 1996;
The Complainant was not included in the audit of the professional
accounting positions, since she did not hold a professional position
in DFAS at the time the review was initiated. However, she would be
subject to the same scrutiny when applying for GS-0510 positions.
Even though the Complainant had previously held a GS-0510 position with
another agency several years before applying for a similar position
with DFAS, and had been rated as a GS-0510 by the Office of Personnel
Management (OPM), it would not mean that she would automatically be
considered to have completed 24 semester hours of accounting.
Likewise, a rating from OPM for a GS-0510 simply means that OPM believes
that the individual meets the qualification requirements. OPM does
not require the applicant to submit an official transcript to support
the education reflected in the application.
S1, the official who reviewed the applications for Vacancy Announcement
CIP-008, was not aware of complainant's age, color, or race when she
evaluated the applications. S1 found that complainant had duplicative
courses on her transcript and credited her with completing 18 semester
hours of accounting.
A total of 22 applicants were rated unqualified for Vacancy Announcement
CIP-008, while 13 were rated qualified. Amongst the 12 unqualified
applicants for whom identifying information is available, 4 were female,
1 Black, and 5 were over the age of 40. Amongst the 21 qualified
applicants for whom identifying information is available, 11 were males,
18 were non-black, and 8 were under the age of 40.
The Personnel Management Specialist (S3) at the DFAS Indianapolis Center
managed the intern program. The Personnel Management Specialist reviewed
the courses that complainant completed after the agency determined that
complainant did not meet the education requirements. The Personnel
Management Specialist in the Indianapolis Center determined that
complainant had several courses on her transcript that were duplicative.
S2 did not know complainant's age, sex, or race at the time that she
reviewed the applications for the second vacancy announcement for the
position of Accountant Intern (Vacancy Announement CIP-FM009).
S2 found that some courses on complainant's transcript were duplicative
and some were not accounting courses; consequently, complainant was
given a total credit of 19 semester hours for the courses reflected on
her transcript.
A total of 39 applications were rated not qualified under Vacancy
Announcement CIP-FM009, while 46 applicants were rated qualified. Of the
unqualified applicants for whom identifying information is available, 21
were non-black, 12 were male, and 16 were under the age of 40. Of the
qualified applicants for whom identifying information is available,
14 were black, 29 were females, and 29 were over the age of 40.
Complainant responded to the agency's motion for a decision without a
hearing, arguing that the AJ should render a decision in her favor.
In her response, complainant stated that she was qualified for the
pertinent positions because she previously held a GS-0510-09 position
for over four years. Complainant further argued that her transcript
and application were scrutinized more severely than other applicants.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discriminatory non-selection on the bases of race/color, age,
and sex. Specifically, the AJ found that the evidence demonstrated that
complainant was not qualified for the Accountant Intern position and no
similarly situated person outside any of her protected classes was hired
after failing to meet the agency's progressive educational requirements.
The AJ further found that complainant failed to demonstrate that the
agency's legitimate, non-discriminatory reasons for her non-selections
were pretextual. The agency fully implemented the AJ's decision in a
final order.
On appeal, complainant contends that the AJ erred when she issued a
decision without a hearing in favor of the agency and reiterates arguments
contained in her investigative affidavit and response to the agency's
motion for a decision without a hearing. Additionally, complainant argues
that the AJ improperly denied her motions to amend her complaint, for
additional discovery, and to remove an unsigned affidavit from the record.
Denial of Motion for Additional Discovery
On November 16, 2001, complainant requested that the AJ order additional
discovery. The requested information included the name of each selection
panel member and the rating sheets used for the rating the selection
of each applicant, the educational level of the selecting officials,
and the qualifications of applicants who have been promoted to a
GS-0510 accountant. The AJ denied complainant's motion. We note that
an AJ has broad discretion regarding matters such as discovery orders,
scheduling, admission/exclusion of evidence, and witness selection.
See 29 C.F.R. � 1614.109(c). Upon review of the matter, we find that
the AJ did not abuse her discretion when she denied complainant's motion
because the information requested was either duplicative of information
already produced in the report of investigation or was irrelevant to
the adjudication of complainant's complaint.
Denial of Motion for Removal of Statement from Record
Complainant also moved to remove an unsigned document of an agency
official from the investigative file. While 29 C.F.R. � 1614.108(c)(2)
states that statements of witnesses shall be made under oath or
affirmation, an AJ has broad discretion to weigh evidence. In this
matter, the AJ stated that she weighed the statement accordingly as a
record of the investigator's notes of her telephone interview with an
agency official. We find that the AJ did not abuse her discretion when
it denied complainant's motion to remove the statement from the report
of investigation.
Denial of Motion to Amend Complaint
On December 6, 2001, complainant moved to amend her complaint to include a
claim that she was discriminated on the basis of race, sex, and age when
the agency failed to select her for two positions after she was rated
"highly qualified." We find that the AJ properly found that this claim
was not like or related to the instant complaint and therefore affirm
her denial of complainant's motion.
Decision without a Hearing
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, a hearing is required. In
the context of an administrative proceeding, an AJ may properly consider
issuing a decision without a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. 1614.109(g). See EEOC MD-110, at 9-16.
In this matter, we find that the AJ's issuance of a decision without a
hearing was appropriate. The AJ found that complainant failed to establish
a prima facie case because the evidence demonstrated that complainant was
not qualified for the Accountant Intern position and no similarly situated
person outside any of her protected classes was hired after failing to
meet the agency's progressive educational requirements. Complainant
contends that her transcript was scrutinized more severely than other
applicants, but we find that she failed to present any evidence to
substantiate this claim beyond her mere assertion. Moreover, we determine
that complainant failed to provide persuasive evidence that the agency's
determination that some courses on her transcript were duplicative of
other courses was incorrect.<1> Further, complainant contends that OPM
guidelines rendered her automatically qualified for the position because
she previously held a GS-0510 position with another agency. However, we
do not find that OPM regulations precluded the agency from enacting more
stringent uniform qualification standards on applicants in this instance
in light of the GAO study's recommendation that the agency scrutinize
the educational backgrounds of applicants for accountant positions.
Finally, we note that of the people deemed qualified for the positions,
many were persons within complainant's protected bases, which weakens
any inference that complainant was rated unqualified because of unlawful
discrimination.<2> Therefore, we find that complainant failed to present
sufficient evidence from which a reasonable fact-finder could conclude
that she established a prima facie case of discrimination based on age,
race/color, or sex.
Finally, regarding complainant's retaliation claim, we find that
complainant failed to present any evidence that she engaged in any prior
EEO activity or that any of the rating officials were aware that she
engaged in such activity. Therefore, we conclude that no reasonable
fact-finder could conclude that complainant established a prima facie
case of retaliation.
Accordingly, after a careful review of the record, the Commission
finds that grant of a decision without a hearing was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
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.
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
_March 15, 2004_________________
Date
1We note that the record does in fact indicate that some of the
courses on complainant's transcript were duplicative of other courses.
For instance, complainant sought credit for both Elementary Accounting
201 and 202, but these courses appear to be duplicative of Fundamental
Accounting I and II.
2We specifically note that of the persons rated qualified over age 40,
a significant number were not substantially younger than complainant,
or were older than complainant.