0120113138
02-12-2013
Kimberly M. Chism, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Kimberly M. Chism,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120113138
Hearing No. 420-2011-00045X
Agency No. 7K0J10006
DECISION
Complainant filed an appeal from the Agency's May 10, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Reference Librarian at Tyndall Air Force Base in Florida.
On April 2, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on December 16, 2009, she was not selected for the position of Moral Welfare Recreation (MWR) Business Management Specialist, NF-1101-111.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 18, 2011 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 13, 2011.
In his decision, the AJ found that, at the time Complainant applied for the position, she was a Reference Librarian and had worked at Tyndall AFB since November 2007. Prior to that she had experience as a Grant Writer/Administrator, Publications Editor, High School Art Teacher/Art Aide, Executive Director, and Membership Director. Complainant had a Master's degree in Art Administration and a Bachelor's degree in Art.
The AJ the found that the selectee was employed for MWR as SCEP Business Management Specialist-1011 and his supervisor was also the selecting official. The selectee had served in the position since June 2009. He had been employed at Tyndall AFB since 2005. From 2005-2009, he had been employed as a Golf Course Manager under the selecting official. The selectee did not have a college degree.
The AJ noted that the position announcement stated that "a baccalaureate degree in Business Administration is desirable for this business or equivalent experience can be substituted for the education requirement." Neither Complainant nor the selectee possessed a baccalaureate degree in business administration.
Complainant and the selectee made the certificate of eligibles list. No interviews were held. The AJ found that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the selection. The selectee had six years of MWR experience as Assistant to the Flight Chief, Golf Course manager, and Golf Director. Complainant's experience was as a Reference Librarian, Publications Editor, High School Art Teacher/Aide, Executive director, and Membership Coordinator. Therefore, the AJ found support for the contention that the selectee was chosen becauce of prior Agency MWR experience, which Complainant did not have. The AJ found that while Complainant was qualified for the position, she did not produce evidence that her qualifications were plainly superior to those of the selectee. The selectee had substantial MWR experience and the announcement said that experience could be substituted for education. As such, the AJ found that Complainant failed to show that the Agency's reasons for picking the selectee over Complainant were a pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Based on the undisputed evidence gathered during the investigation, we find that the record supports the AJ's finding that Complainant was not discriminated against as alleged. The selecting official explained that his flight included "a ton of recreation, a ton of pure business, a ton of food and beverage and programming operations and as incredible as [Complainant's] background was in the museum and arts and libraries, [he] was looking for someone who had more experience in [his] flight core that basically would be ready to go and [he] just did not see that in her resume." Complainant stated she had assisted in the preparation of budgets, submitted work order and supply orders, completed cash forms, and prepared briefings for various officials. The selecting official felt that the selectee had done all of that "basically for a longer period of time and basically dealing with more extensive budgets, bigger pots of money, and more again with pure business and recreation oriented." In sum, we find that the AJ's conclusion that Complainant has failed to prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext for discrimination is fully supported by the record.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding that Complainant was not discriminated against as alleged.
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
February 12, 2013
__________________
Date
2
0120113138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113138