01a45839
04-08-2005
M. Jeanne Walters, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency) Agency.
M. Jeanne Walters v. Department of Defense
01A45839
April 8, 2005
.
M. Jeanne Walters,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Contract Management Agency)
Agency.
Appeal No. 01A45839
Agency No. XL02007
Hearing No. 120-2003-00494X
DECISION
Complainant was employed as a Procurement Technician, GS-1106-06.
She filed a formal EEO complaint in which she claimed that the agency
discriminated against her on the basis of her age (dob 10/27/27) when
she was not selected for the Keystone Program positions advertised
under Job Announcement Numbers: DCMA-01-127, Contract Administrator,
GS-1102-05; DCMA-01-129, Contract Administrator, GS-1102-07; DCMA-00-1563,
Quality Assurance Specialist, GS-1910-05; DCMA-00-1566, Quality Assurance
Specialist, GS-1910-07. The record reveals that the advertised positions
were entry level intern positions. The agency policy was to interview
applicants for Keystone positions once for all positions, regardless
of series, with general questions and selection criteria in order to
identify the candidates with the best overall qualities suited to a
Keystone intern position. The panel members assessed each candidate
on: Quality of communicative skills; quality of interpersonal skills;
quality of educational background; quality of prior experience; and job
interest/career orientation.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request
for a hearing. Without holding a hearing, the AJ issued a decision
granting the agency's Motion for Summary Judgment and finding no age
discrimination. The AJ found that the agency set forth legitimate,
nondiscriminatory reasons for complainant's nonselections. The agency
stated that complainant was not recommended for selection due to her
interview and application. The AJ found that complainant failed to
proffer any evidence to establish that the reasons articulated by the
panel members are unworthy of credence. On July 30, 2004, the agency
issued a final action implementing the AJ's decision.
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.
With respect to complainant not being selected for the positions at issue,
we shall assume arguendo that complainant set forth a prima facie case
under the alleged basis. The agency stated that complainant was not
selected for positions based on her interview and application. The agency
stated that complainant only scored an average of five out of ten points
from each panel member because there was nothing noteworthy about her
interview. The agency further stated that complainant failed to answer
all of the questions posed, and generally gave short responses, lacking
detail or elaboration. We find that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant.
Complainant claims that she deserved to be selected based on her
experience and education. She stated that she has 24 years of experience
with the agency. However, she apparently acknowledged that she gave
short answers during her interview when she stated in her pre-hearing
statement , �Unfortunately, some people do possess better interviewing
skills than others, but one should not be disqualified for short and
honest answers . . .� We find that complainant has not refuted the
agency's position that her interview and application were the reasons for
her nonselections. Complainant has not proffered evidence that suggests
the panel members were guided in their determination by any reason other
than her unimpressive interview and insufficiently strong application.
We find that complainant has not established that the agency's stated
reasons were pretext intended to mask discriminatory motivation.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to AFFIRM the agency's final
action finding no discrimination as a preponderance of the record evidence
does not establish that age discrimination occurred.
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
April 8, 2005
__________________
Date