0120121563
07-25-2012
Laurie Germonto, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Laurie Germonto,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121563
Hearing No. 420-2011-00114X
Agency No. 10-69450-00711
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 12, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Financial Technician, GS-0501-07, at the Agency's Naval Facilities Public Works, Naval Air Station in Pensacola, Florida.
On April 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of sex (female) when:
she was not selected for the position of Production Controller, GS-1152-07/09; and Production Controller, GS-1152-09 from Internal Competitive Certificate Number SE-GS1152-07-MZ443264-C-IN19 and External Certificate Number SE9-GS1153-090MZ443264-C.
Following the investigation, Complainant was provided with a copy of the report of investigation and a notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the Agency filed a motion for summary judgment.1 On May 12, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of sex discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscrimination reasons for its actions which Complainant did not show a pretext. Specifically, the AJ found that the selectees had specific experience with production, shop, and supply systems, and Maximo software whereas Complainant did not.
The AJ noted that Complainant applied for the two Production Controller positions. Complainant was rated as qualified and referred to the selecting official for consideration along with three other qualified applicants on the internal competitive certificate number SE9-GS1152-07-MZ443264-C-IN19, and along with 9 other qualified applicants on the external certificate number SE9-GS1152-09-MZ443264-C. The AJ further noted that the selection process involved a review of the resumes of the applicants for the following matters: (a) technical experience/knowledge (50 points); (b) maintenance and construction skills (25 points); and (c) computer and program knowledge (25 points). Complainant was ranked three with an overall score of 86.7 while the other two applicants were ranked first and second with overall scores of 101.6 and 92.7 respectively. The AJ noted that 3 applicants, including Complainant, were interviewed for the subject positions.
The AJ noted in his affidavit, SO stated that after receiving the list of qualified applicants for the subject Production Controller positions, he implemented an Advisory Selection Board consisting of 3 Agency officials. SO stated that he also selected an EEO representative and a union representative to be non-voting observers. SO further stated "I compiled the criteria and gave board members the instructions. There was different elements judged and each applicants could gain as much as 100 points total." SO stated that the chairperson of the board drafted the interview questions. SO stated that following the interviews, the board recommended two applicants for the subject positions. SO stated that he concurred with the board's recommendation and selected the selectees because they were best qualified.
SO stated that he did not select Complainant because "she didn't show a broad knowledge of the selection criteria. She had no trade knowledge and no experience in MAXIMO which is a production tracking software and used extensively in the production environment. Complainant also lacked experience in material and supply systems."
Complainant's asserted that she should have been selected because she has over 20 years of experience in production. However, SO stated that Complainant's experience was in the area of finance. Specifically, SO stated that one of the two selectees (S1) "had been doing the job for about 5 years. He has lots of experience working in MAXIMO. It wasn't his job title; however, about 90% of his duties were production controller duties. The other selectee, [named selectee (S2)] had worked in the job for about 6-8 months. He was on light duty and had worked in supply, in the shops and as a management assistant and had experience in MAXIMO." Moreover, SO stated that Complainant's sex was not a factor in his determination to select the selectees for the subject position.
The chairperson of the panel (CP) stated that as a chairperson, his role was to make sure the board operated pursuant to Agency policy and regulations. CP further stated that each member reviewed the applicants' application packages and graded them. CP stated that the board then met to discuss the scores "to make sure the criteria [were] followed and to discuss any scores that were far apart from other panel members." CP stated that following the interviews, the board submitted its recommendations to SO.
CP stated that the following three criteria areas were examined by the board: "(1) Technical to interface with the shop's personnel. The selectee should be able to understand shop duties and functions in order to get things done, (2) Knowledge and or experience of supply so that they could know when materials were on-site and how to schedule jobs, (3) and to have a good understanding of MAXIMO database since this is the primary software to track all production materials and to understand MAP Maintenance Action Plan that tracks works orders and MEP Maintenance Execution Plan to understand which projects were funded by quarter." CP stated that the panel recommended two selectees because they met the criteria.
CP stated that the board did not recommend Complainant because "she never provided any information of a technical nature either in her resume or during her interview that she had any experience in the production environment. All of her experience and knowledge dealt with budgets and financial consideration." CP also stated that Complainant lacked experience in MAP, MEP and Maximo. Furthermore, CP stated that he did not discriminate against Complainant based on her sex.
The Facilities Management Director stated that he was the approving official (AO) concerning the two selections. Specifically, AO stated "I met with the selection official and established criteria. A board was form and the board gave their recommendations to the selecting official. The selecting official met with me with the selections and I signed off on the approval." AO stated that the two selectees were best qualified for the subject positions based on their work experience.
One of the board members (M1) stated that the board recommended the two selectees "because they scored higher and had more experience than Complainant." M1 stated that he recalled Complainant lacked shop/construction experience. Specifically, M1 stated that the experience Complainant lacked were as follows: carpentry, plumbing and sheet metal and other production experience."
The union representative (UR) stated that while he was a non-voting member of the board, he reviewed the application packages and graded them. UR further stated that the board reconvened and compared their grades and "my grades were not discussed; I graded the applications only to make sure the board grades did not deviate from the guidelines and instructions. I did not observe any indication that the board grades deviated far from the grades I had. There were no indications that Complainant was being treated differently or discussions related to her gender by any board member."
Furthermore, UR stated that the board did not recommend Complainant because she "lacked trade knowledge. She had a lot of computer knowledge, but [did] not have the trade knowledge. The production controller works with various trades such as mechanics, plumbers, sheet metal mechanics, and other trade professionals. Therefore, the production controllers has to have some knowledge in order to schedule work, do change orders and other functions of the position."
Complainant did not make any new contentions on appeal.
ANALYSIS AND FINDINGS
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, 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.
After careful review of the record and consideration of the arguments on appeal, we find that Complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment. Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
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
July 25, 2012
__________________
Date
1 The record does not contain a copy of the Agency's motion for summary judgment or Complainant's response to the Agency's motion.
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Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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