0120065127
05-15-2008
Omid Amiri, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Omid Amiri,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200651271
Hearing No. 510-2006-00040X
Agency No. 200I-0516-2005102933
DECISION
On September 3, 2006, complainant filed an appeal from the agency's August
11, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
At the time of events giving rise to this complaint, on April 29, 2005,
complainant applied for the position of Dental Laboratory Technician,
GS-683-9, under Vacancy Announcement No. MPA-05-30, at the agency's Bay
Pines Veteran's Affairs Medical Center in Bay Pines, Florida. On June
17, 2005, complainant called the agency to check on the status of his
application and was informed that he was not selected for the position.
On July 1, 2005, complainant received a letter from the agency confirming
that he was not selected for the position.
On June 20, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Iran), national origin
(Iran), and religion (Muslim) when on June 17, 2005, he was notified that
he was not selected for the position of Dental Laboratory Technician,
GS-683-9, under Vacancy Announcement No. MPA-05-30.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's June 2, 2005 motion for a decision without
a hearing and issued a decision without a hearing on July 24, 2006.
The AJ found that complainant established a prima facie case of race,
national origin and religion discrimination. The AJ next found that the
agency articulated legitimate reasons for not selecting complainant.
Specifically, the AJ found that the selecting official (SO) provided
that the selectee and the other two interviewed candidates were board
certified, had at least ten to fifteen years of experience as dental
laboratory technicians, and were currently working in the dental field.
The SO provided that, in contrast, complainant had only four years
experience as a dental technician and had not worked in the dental
field for several years prior to his application. The AJ found that the
undisputed evidence in the record showed that even though complainant
received an Associate's Degree in Dental Laboratory Technology and had
four years experience, the selectee was a board certified laboratory
technician with over ten years of experience as a dental laboratory
technician. Further, the AJ found that complainant had not worked in the
field since 2002, whereas the selectee was working as a dental laboratory
technician when he applied for the position and regularly attended
seminars and clinics to keep his certification up to date. The AJ also
found that the selectee conducted educational classes on subject matters
directly related to the dental laboratory technician position. The AJ
found that complainant failed to proffer any evidence to support his
contentions that the agency's reasons for not selecting him were unworthy
of credence. As such, the AJ concluded that complainant failed to show
he was discriminated against as he alleged. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). We must first determine whether
it was appropriate for the AJ to have issued a decision without a hearing
on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing). We find
that the record reflects that the record was adequately developed for a
decision without a hearing. Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003). Further, the Commission finds that there
was ample notice of the agency's motion for a decision without a hearing;
it contained a comprehensive statement of the allegedly undisputed
material facts; and complainant had the opportunity to respond to such
a statement.
Preliminarily, we note that the AJ erred in finding that complainant
failed to establish by the preponderance of the evidence that he was
discriminated against as he alleged. The proper inquiry is whether a
genuine issue of fact exists such that a hearing is warranted. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, we find
that the AJ's ultimate conclusion to render a decision without a hearing
was appropriate since complainant failed to show that a genuine issue of
material fact existed such that a hearing was warranted in this case.
Turning to the merits of the case, we note that to prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
We find that, assuming arguendo that complainant established a prima facie
case of discrimination, the record reflects that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant
for the position, namely, the selectee was more qualified and had more
experience in the field.
Since it is established that the agency articulated legitimate,
nondiscriminatory reasons for its actions, we examine whether complainant
raises genuine issue of material fact to show that the proffered reasons
were a pretext for discrimination. In order to do so, complainant argues
that he was better educated; the selectee was only board certified for
two years; and there was not requirement in the Vacancy Announcement
for the applicant to be board certified for the position.
In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court
held that to infer evidence of pretext from comparative qualifications,
complainant must show: (1) that the disparities between the successful
applicant's and [her/his] own qualifications were "of such weight
and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
[complainant]" (Cooper v. Southern Co., 390 F.3d 695, 732 (2004)); (2)
that [complainant's] qualifications are 'clearly superior' to those of
the selectee (Raad v. Fairbanks North Star Borough School Dist., 323 F.3d
1185, 1194 (9th Cir. 2003)); or (3) that "a reasonable employer would
have found the [complainant] to be significantly better qualified for the
job," along with other evidence (Aka v. Washington Hospital Center, 156
F.3d 1284, 1294 (C.A.D.C. 1998) (en banc)). We find that even taking the
facts in the light most favorable to complainant, he fails to present any
evidence to show that a genuine issue of material fact exists regarding
the selectee's qualifications compared to his own. Complainant has
offered no evidence to show that he has the qualifications to demonstrate
that he is clearly superior or that a reasonable employer would have
selected him over the selectee. Moreover, nothing in the record suggests
that the agency was motivated by animus towards complainant's race,
national origin or religion. Complainant has offered no evidence to
corroborate his contentions that the agency was so motivated. As such,
we find that the AJ appropriately determined that no genuine issue of
fact exists such that a hearing is warranted in this case.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order adopting the AJ's finding that complainant failed to show
that a hearing was warranted in the case and finding that complainant
was not discriminated against as he alleged.
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
______5-15-08_____
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120065127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065127