01a42667
07-19-2005
Milton Lovick, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Milton Lovick v. Department of the Navy
01A42667
July 19, 2005
.
Milton Lovick,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A42667
Agency No. 02-00187-087
Hearing No. 120-2003-00464X
DECISION
Complainant filed an appeal with this Commission from the February 25,
2004 agency decision which implemented the January 6, 2004 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
In his complaint, complainant alleged that the agency discriminated
against him on the bases of race (Black) and color (dark black skin)
when he was not selected for the position of Public Works Customer
Liaison Manager, GS-1601-12, Ann. No. PW/004/02/AAH.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment), finding no
discrimination. In finding no discrimination, the AJ stated that even
if the evidence were viewed in a light most favorable to complainant,
complainant failed to show that he was discriminated against by the
agency.
On appeal, complainant asserts that he was clearly the superior candidate
and should have been selected as the most qualified. The record
reveals that complainant applied for the vacant position of Public Works
Customer Liaison Manager. A certificate of eligibles (COE) was issued
and complainant was one of the 14 candidates listed on the COE and the
only African American. The remainder of the candidates were Caucasian.
Two of the candidates on the COE withdrew from the selection process.
The record reveals further that the selecting panel was composed of three
persons. The record also reveals that evaluation criteria consisted of
five application rating factors and seven interview questions with the
eighth interview question to be used as a tiebreaker. The record reveals
further that the maximum number of points for the application segment was
120 and the maximum number of points for the interview portion was 180.
The record reveals that the selectee received the highest score of
the 12 candidates. The selectee received a total score of 231, having
scored 96 points on his application and 135 points on the interview.
Complainant, the record reveals, ranked fourth among the 12 candidates
who competed in the selection process. Complainant scored 87 on his
application and 90 points on the interview, for a total score of 177.
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. See 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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). In establishing pretext, complainant may show directly that a
discriminatory reason more likely motivated the agency or indirectly, by
showing that the agency's proferred explanation is unworthy of credence.
As an initial matter, we note that an AJ's conclusions of law are subject
to a de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Assuming that complainant has established a prima facie
case of race and color discrimination, the agency has articulated a
nondiscriminatory reason for selecting the selectee, i.e., he received
the highest score in the selection process. The record supports the
agency's assessment of the 12 candidates. The Commission notes that
while in nonselection cases, pretext may be found where the complainant's
qualifications are plainly superior to the qualifications of the selectee,
the Commission is unable to find that complainant's qualifications were
superior to those of the selectee. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995). The selectee's performance
during the interview and his experience and qualifications support the
agency's choice of him. Ultimately, the agency has broad discretion
to set policies and carry out personnel decisions, and should not be
second-guessed by the reviewing authority absent evidence of unlawful
motivation. See Burdine, 450 U.S. at 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997).
Although complainant has taken issue as to how points were awarded and
disagrees with the scores he received, this disagreement does not amount
to pretext. In addition, complainant has failed to establish that
any alleged preselection by providing the selectee with a preferential
assignment was motivated by a discriminatory animus. See Goostree
v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)(preselection unless based
on unlawful discrimination is not prohibited). Moreover, employment
decisions based on friendship or favoritism are not in violation of Title
VII so long as they are not also premised on some basis which is unlawful
under Title VII. Goostree, supra. To the extent that complainant may
be alleging that the agency failed to follow its own procedures in the
selection process, this condition alone is not sufficient to support an
inference of pretext.
Accordingly, we find that complainant has failed to show by a
preponderance of the evidence that the agency's articulated reason for its
selection of the selectee was mere pretext for prohibited discrimination.
Construing the evidence to be most favorable to complainant, complainant
has failed to establish evidence that the agency's actions were motivated
by discriminatory animus toward complainant's protected classes.
Accordingly, the agency's decision finding 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
July 19, 2005
__________________
Date