Larry D. Agee, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01a34514 (E.E.O.C. Nov. 22, 2004)

01a34514

11-22-2004

Larry D. Agee, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Larry D. Agee v. Department of the Navy

01A34514

November 22, 2004

.

Larry D. Agee,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A34514

Agency No. 0200187043

Hearing No. 120-2002-01609X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his 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

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 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 complainant, a Maintenance Supervisor at the

agency's Navy Public Works Center, filed a formal EEO complaint on

January 15, 2002, alleging that the agency had discriminated against him

on the bases of race (Caucasian), disability (30% burns), and reprisal

for prior EEO activity when:

(1) he was not selected for the position of Electrical Engineering

Technician under Vacancy Announcement PW/01/0898/FW-NR and

he was not selected for the position of Electrical Engineering Technician

under Vacancy Announcement PW/01/0876/FW-NR.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that even when viewing the evidence in the light most

favorable to complainant, he failed to demonstrate he was discriminated

against based on his disability or in reprisal for his prior EEO activity.

The agency's final order implemented the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that AJ's grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. According to the Commission's regulations, an AJ may 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 concept of summary judgment as 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, summary judgment is not appropriate.

In the context of an administrative proceeding, an AJ may properly

consider summary judgment only upon a determination that the record has

been adequately developed for summary disposition.

We will assume for purposes of this decision, that complainant is

an individual with a disability as defined by the relevant statutes.

In this case, the agency contends that it did not select complainant

because with respect to the first position, his resume did not earn a

high enough score above the minimum score, to be interviewed for the

first position. Consequently, he was not considered by the interview

panel for further evaluation and was not among those referred to the

selection official. With respect to the second selection, the agency

contends that even though complainant was among those interviewed, he

did not provide sufficient information during the interview and did not

score well in the interview process.

The agency held a fact finding conference during which complainant did

not dispute that he had less experience than those selected because he had

been assigned to the Maintenance division and not the Utilities division.

One panel member outlined in detail the areas which complainant failed

to address sufficiently during his interview including questions about

troubleshooting and repairing different computer software. She also

testified that complainant did not indicate he had much knowledge about

the computer aided drafting system. Thus, complainant did not establish

that there was any dispute about the agency's reason for not selecting him

such as by showing that his qualifications were far superior than those

of the selectees. See Bauer v. Bailar 647 F.2d 1037 (10th Cir. 1981).

Additionally, there was no dispute that of the eight persons selected,

all but one were of the same race as complainant. Complainant contended

that the selections were based on his race because his former supervisor

(S), who is African American, was on the interview panel. This was

insufficient evidence, however, to raise a genuine issue because the

panel had three other members. Moreover, complainant did not proffer any

evidence that the other three panel members harbored any discriminatory

animus or that they acted in collusion with S to discriminate against

him based on his disability or his race.

Addressing complainant's claim of retaliation for his prior EEO

activity, the record discloses that complainant filed a complaint in

December 1998 and in May 2001. The selection decisions were made in

July 2001 and December 2001. The investigation revealed that all of the

individuals involved in the evaluation and interview process were aware

of complainant's EEO activity. Even though complainant established

a prima facie case of retaliation, complainant failed to come forward

with enough evidence of a causal connection between his EEO activity

and the agency's decisions. That is, there was insufficient evidence

to establish a genuine issue of fact such that a hearing to resolve

a factual dispute would have been necessary. Therefore, we find that

the AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws. The agency's decision

adopting the AJ's finding of no discrimination 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

November 22, 2004

__________________

Date