0120100582
08-31-2011
Milton R. Ross, Jr., Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Milton R. Ross, Jr.,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120100582
Hearing No. 560-2007-00350X
Agency No. 9V1M06492TF10
DECISION
Complainant filed an appeal from the Agency’s final order dated
November 9, 2009, finding no discrimination with regard to his complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In his complaint, dated November 2, 2006, Complainant, a WG-10 Sheet Metal
Mechanic, Tanker Structure Section, Oklahoma, alleged discrimination based
on race (African-American) and in reprisal for prior EEO activity when:
(1) he was not given the opportunity for consideration regarding an
assignment to a WL-3806-09 Sheet Metal Mechanic Work Leader position;
and (2) he became aware he did not rank high enough to be referred for a
WS-3806-10 Sheet Metal Mechanic Supervisor position.1 Upon completion
of the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). On September 24, 2009, the AJ
issued a decision without holding a hearing, finding no discrimination.
The Agency’s final order implemented the AJ’s decision.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged actions. With regard to
claim (1), the AJ stated that according to the Agency’s managers,
there was no promotion took place nor were any employees placed into
WL-9 positions in July 2006, as Complainant alleged. On appeal,
Complainant does not dispute this. With regard to claim (2), the AJ
stated that Complainant was not ranked high enough to be referred for the
WG-10 positions. Complainant’s score, generated by computer, was 149.
Complainant ranked 56 out of 164 candidates. On appeal, Complainant does
not dispute this. After a review of the record, we agree with the AJ that
Complainant failed to rebut the Agency’s legitimate, nondiscriminatory
reasons for the alleged incidents. Furthermore, Complainant failed to
show that his qualifications for the position were plainly superior
to the selectee’s qualifications or that the Agency’s actions
were motivated by discrimination. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing,
we find that Complainant has failed to show that the Agency’s actions
were motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
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
8/31/11
__________________
Date
1 The Agency previously dismissed a claim concerning a performance rating;
however, we wil not address this dismissal further since Complainant
did not challenge the dismissal during the hearing or on appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100582
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120100582