01a51761
04-28-2005
Noe F. Milano, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Noe F. Milano v. Department of the Navy
01A51761
April 28, 2005
.
Noe F. Milano,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A51761
Agency No. 01-69232-016
Hearing No. 340-2002-03135X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was a Housing Management Assistant,
GS-1173-07, at the agency's Family Housing Department (Code N941VE),
Naval Base Ventura County, Point Mugu, California. On January 24, 2001,
complainant initiated contact with the EEO office, claiming discrimination
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful. On May 3, 2001, complainant
filed the instant formal complaint.
On June 13, 2001, the agency issued a document identified as
"Acknowledgment for Investigation and Dismissal of Claims of
Discrimination Complaint." Therein, the agency determined that the
instant complaint was comprised of the following four claims<1>:
(1) on December 21, 2000, complainant became aware that he was not
selected for the position of Housing Manager, GS-1173-09. Complainant
contends that he was more qualified and possessed more specialized
experience than the selectee;
(2) on March 1, 2001, management offered to promote temporarily
complainant and three other co-workers to a GS-09 position, on a ninety
(90) day rotational basis. Complainant declined this opportunity, arguing
that he should have been promoted into the position on a permanent basis;
(3) the agency Housing Director, harassed him by closely monitoring his
time and attendance. In support of this alleged harassment, complainant
cites the following examples:
his former first level supervisor informed him that the Housing Director
was "after him." Complainant further noted that this alleged conversation
occurred on February 3, 2000;
as noted in his Leave and Earnings statement for the pay period ending
October 13, 2000, he was "docked" (charged with Leave Without Pay)
for ten minutes on October 3, 2000;
on October 18, 2000, complainant worked seven minutes overtime; and
management provided him with compensatory time rather than overtime; and
on November 1, 2000, complainant was accused by a female employee of
making a racial comment. Complainant claimed that management took action
against him without seeking his version of the events.
(4) on July 19, 2000, complainant requested a desk audit for his
current position as Housing Management Assistant, but never received
such an audit.
The agency accepted claim (1) for investigation. The agency dismissed
claim (2), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. The agency found that complainant was not aggrieved and
suffered no harm. The agency dismissed claims (3) and (4) pursuant to 29
C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
The agency concluded that the alleged discriminatory events occurred on
February 3, 2000, October 3 and 18, 2000, and November 1, 2000, but that
complainant did not initiate EEO Counselor contact until January 24,
2001, beyond the forty-five-day limitation period.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On August 9, 2004, the AJ issued a Notice of Reassignment and
Proposed Decision Without Hearing, allowing the parties to file a written
response to the Notice. The record reveals that both parties responded.
Thereafter, the AJ issued a decision without a hearing on September 27,
2004, finding no discrimination.
In her decision, the AJ concluded that because the record does not
contain complainant's prior complaint, it was unclear whether the named
management officials identified in a prior complaint were the same
officials in the instant case, and whether the management officials
in the instant case were aware of complainant's prior EEO activity.
The AJ further concluded that even assuming complainant established
a prima facie case of reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for the non-selection. The AJ found
that complainant failed to prove that the agency's articulated reasons
were a pretext for discrimination. Furthermore, the AJ concluded that
a review of the record does not show that the selectee was preselected,
and found no evidence to support complainant's contentions that he was
more qualified than the selectee.
The AJ noted in his declaration and interview with an EEO Counselor,
the Selecting Official (SO), stated that he was on the interview panel
with three other management officials. The SO stated that during the
interview process, the panel reviewed the resumes of all candidates, and
rated candidates 1 through 5 points based on answers to the interview
questions. The SO stated that following the interviews of the candidates,
the panel provided him with its recommendation. The SO stated that he
selected the selectee for the subject position because he was "the best
suited person." The SO stated that during the interview, the selectee
provided "very good answers and he had a professional attitude."
The SO stated that when comparing the selectee with complainant, the
selectee "was very good in communicating his answers." The SO stated
that the selectee was also considered a team player. The SO stated that
complainant did not receive the highest test score, and that he was not
considered a "team player."
Regarding complainant's argument that the selectee was preselected, the SO
stated "I did not have someone in mind for the Housing Manager, GS-9."
The SO stated that when the selectee "came in to be interviewed, he
really blew the panel away with the answers he provided." Furthermore,
the SO stated that even though he was aware of complainant's prior EEO
activity, that it was not a factor in his determination to select the
selectee for the subject position.
The AJ noted that one of the panelists (P1) stated that the panel used all
the candidates' answers to the interview questions to determine who would
be selected for the subject position. The P1 further stated that the
panel also looked at the candidates' resumes "but it was the interview
questions that was more heavily weighed in my mind." The P1 stated
that while the interview questions were all technical Housing questions,
the candidates who "answered the questions right, scored the highest."
The P1 stated that complainant "did not come out on top," because he
did not have the correct answers to interview questions. The P1 stated
that the complainant's answers were "very short; he did not elaborate
on his answers." The P1 stated that by comparison the selectee "came
across better in the terms of the answers he provided to the interview
questions." The P1 stated that the selectee "just went further in the
service to the customers; he was better at team work; he would ask to
assist people; and he would help out in any situation." Furthermore,
the P1 stated that he was aware of complainant's prior EEO activity.
The AJ noted that another panelist (P2) stated that the selectee was
selected for the subject position because he "took total command of the
interview." The P2 further stated that during the interview, the selectee
"discussed his credentials; how he has helped individuals; how he's been
motivated and initiatives he's taken to improve customer service." The P2
stated that when complainant came in for the interview, "not once did he
look at the panel members - he looked down at the table." The P2 stated
that when the panel asked complainant questions, "he looked down at the
table; he mumbled his answers; he had the attitude that he was already
doing the job; and could not answer many of the questions provided."
The P2 stated that following the interviews of all candidates, she
informed the panel that the selectee was "very impressive" and would be
the "best individual" for the subject position. The P2 stated that she
also informed the panel that she would feel comfortable being away for
two weeks and having the selectee meeting and interacting with various
housing customers. The P2 stated that "none of the panel members had
appeared to have a pre-selected candidate in mind." The P2 stated that
while she was not aware of complainant's prior EEO activity, the SO made
no reference to the panel.
Further, in his declaration and interview with an EEO Counselor,
the third panelist (P3) stated that the interview questions were very
specific, and it was his assessment that the selectee "had the capacity
to answer those and along with this background, I believe, he also had
military experience." The P3 stated that the selectee was "head and
shoulders above everyone in the process" because he had better grasp
of the technical questions. The P3 stated that complainant did not
receive the highest score, and that the selectee "scored the highest."
The P3 stated that he was not aware of complainant 's prior EEO activity
because there was no discussion of complainant's prior EEO activity
with other panel members. The P3 stated "to the best of my knowledge,
the panel did not have a pre-selected candidate in mind."
On December 7, 2004, the agency issued a final order implementing the
AJ's decision finding no discrimination regarding claim (1).
Claim (1)
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
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. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Accordingly, the agency's final order implementing the AJ's decision
finding no discrimination concerning claim (1) was proper and is AFFIRMED.
Claims (2) - (4)
Regarding claim (2), complainant claimed that he was discriminated
against in reprisal for prior protected activity when on March 1,
2001, management offered to temporarily promote him and three other
co-workers to a GS-09 position, on a ninety (90) day rotational basis.
Complainant further claimed that he declined this opportunity because he
should have been promoted into the position on a permanent basis. In a
partial dismissal dated June 13, 2001, the agency dismissed claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency determined that complainant did not provide any evidence
to suggest that he suffered a personal loss or harm regarding a term,
condition or privilege of his employment. We agree that the alleged
incident is not sufficiently severe or pervasive to state a claim
of discriminatory harassment and does not state a claim. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Therefore, we find that the agency properly dismissed claim (2)
for failure to state a claim.
Regarding claims (3) and (4), complainant claimed that he was
discriminated against in reprisal for prior protected activity when
from February 2000 to November 2000, he was harassed by management,
including the Housing Director, when they closely monitored his time
and attendance; and on July 19, 2000, he requested a desk audit for his
current position as Housing Management Assistant, but never received such
an audit. The agency dismissed claims (3) and (4) pursuant to 29 C.F.R. �
1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
The record reveals that the alleged discriminatory events occurred on
February 3, 2000, October 3 and 18, 2000, and November 1, 2000, but
that complainant did not initiate contact with an EEO Counselor until
January 24, 2001, which is beyond the forty-five-day limitation period.
On appeal, complainant presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Therefore, we find that the agency properly dismissed claims
(3) and (4) for untimely EEO Counselor contact.
Accordingly, the agency's dismissal of claims (2) - (4) was proper and
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
April 28, 2005
__________________
Date
1For purposes of clarity, the Commission has
re-numbered complainant's claims as claims (1) - (4),