0120091170
04-16-2009
Marie Y. Lau, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Marie Y. Lau,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091170
Agency No. DON-06-00391-02114
Hearing No. 530-2008-00069X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 8, 2008 final order concerning her equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On December 7, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that the agency discriminated against her on the bases of national origin (Chinese), sex (female), color (fair), disability (accent), age (62), and in reprisal for prior EEO activity when:
on or about August 31, 2006, she was not selected for either of the two Program Analyst positions, GS-343-9/11 and GS-343-11.
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On October 10, 2008, 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, based on the evidence of record, complainant had not established a prima facie case of discrimination based on sex, disability and retaliation.1 The AJ found, however, that complainant established a prima facie case of race, national origin and age discrimination. The AJ further found that because complainant has established a prima facie case of race, national origin and age discrimination and assuming arguendo that complainant established a prima facie case of sex, disability and reprisal discrimination, the agency nevertheless articulated legitimate, non-discriminatory reasons for complainant's non-selections.
Specifically, the AJ noted that in regard to both vacancy announcements, all candidates, including complainant, were graded on five pre-determined criteria categories and the interview; and that the two candidates who ranked the highest were selected for the two subject positions. The AJ noted that in regard to the GS-343-9/11 position, the selectee was ranked first with an overall score of 71 while complainant was ranked fifth with an overall score of 64. The AJ further noted that in regard to the GS-11 position, the selectee was ranked first with an overall score of 84 while complainant was ranked fourth with a score of 65. 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.
On appeal, complainant contends that there were several inaccuracies in the final order. Specifically, complainant asserts that in its final decision, the agency stated that complainant received the AJ's final decision on November 19, 2008. Complainant stated, however, that she was traveling "until December 10, 2008," and did not receive the AJ's final decision until she returned. Moreover, complainant disputed the AJ's determination that the chairperson of the panel, a panelist and the selecting official were unaware of complainant's age or her prior protected activity during the relevant period. Finally, complainant stated that in addition to the training she took, including several group presentations, she was a member of "Toastmasters, which is a well-known non-profit organization that helps its members to develop public speaking and leadership skills through practice and feedback. Complainant argues that if "experience with these systems and small group presentations were required for these positions, and the panel was unsure about my familiarity with them, I should have been asked about my proficiency during the interview."
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.
Regarding complainant's appellate arguments, the Commission determines that even if the matters were as alleged by complainant as to the facts mentioned in the brief, we find that such matters do not affect the outcome of the case or the AJ's finding regarding the propriety of issuing a decision without a hearing.
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
April 16, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only, and without so finding, that complainant is an individual with a disability.
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0120091170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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