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