0120093413
01-13-2010
Lillie Mae Golden, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lillie Mae Golden,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093413
Agency No. 200J-0578-2008103522
Hearing No. 440-2009-00099X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 15, 2009 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On August 27, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the basis of race (African-American) when:
on May 8, 2008, she received notice that she was not selected for
the position of Food Service Worker, WG-4, as announced under Vacancy
Announcement No. 08-222H.
Following the investigation into her formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On June 18,
2009, 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 AJ found that complainant did not show by a preponderance of the
evidence that she was discriminated against on the bases of race and age.1
Specifically, the AJ determined that the selectee was chosen for the
subject position because of her highest overall score, while complainant
had the lowest score. Finally, the AJ concluded that complainant did not
prove, by a preponderance of the evidence, that the agency's proffered
reasons for its action were a pretext for discrimination.
The AJ further noted that the record reflects that eight candidates,
including complainant, applied and were considered qualified for the
position of Food Service Worker. The AJ noted that following the
interviews, the selectee had the highest score of 303 points while
complainant was ranked eighth, with an overall score of 184 points.
The AJ noted that the selecting official (SO) stated that she implemented
a selection panel of three agency officials including herself. SO stated
that the panel interviewed all of the candidates and "tallied the
scores and made the selection based on the highest selection score."
SO stated that the selectee "interviewed extremely well. She had several
answers that were very comprehensive as far as her past work experience.
And she had done several things that led her supervisor to rate her as
an outstanding, and she talked about several for those incidents that
really showed that she was over the top as far as going above and beyond
her job description."
SO stated that during the interview, complainant did not do well.
Specifically, SO stated that complainant "did not give a lot of details
in her answers, so it's very difficult to tell if she was as qualified
as she may have been. She needed to tell us what . . . qualifications
she had and what made her . . . stand out, and she really had a lot of
difficulty doing that." Furthermore, SO stated that complainant's race
and age were not factors in her determination to select the selectee
for the subject position.
On appeal, complainant argues that the AJ "would have granted me a hearing
if I had refuted certain statements in a timely manner, that the agency
made against me." Complainant further states that the agency spokesperson
"refused to discussed settlements he initiated with me through a letter
of settlement demand. [Agency Spokesperson] wrote up a false letter in
[pretense] that he sent out to me after he learned that I stated to the
AJ."
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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, 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 (M1208)
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 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 (S0408)
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 (Z1008)
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
January 13, 2010
__________________
Date
1 The record reflects that during the EEO counseling process, complainant
raised claims of race and age discrimination but in the instant complaint,
she only referenced race discrimination. The AJ determined even if age
was a basis in the instant case, the agency would still be entitled to
summary judgment.
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0120093413
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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