01986189
05-31-2001
Otto E. Lewis, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Otto E. Lewis v. Department of Justice
01986189
May 31, 2001
.
Otto E. Lewis,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01986189
Agency No. D-96-3410
Hearing No. 100-97-8015X
DECISION
Complainant timely initiated an appeal from the agency's final
decision 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.
Complainant alleges he was discriminated against on the basis of race
(African-American) when he was not recommended to the Career Board for a
promotion to the position of GS-343-15, Chief of Operations and Support
Section, Office of Information Systems, in August 1996.
The record reveals that complainant was an Acting Chief, GS-14, at the
agency's Drug Enforcement Administration facility in Arlington, Virginia.
Complainant applied for the permanent position of Chief and was placed
on the list of twenty-three best qualified candidates. Complainant was
then one of the ten applicants selected for an interview. The interviews
were conducted by the Deputy Assistant Administrator (Deputy, Asian)
and the Assistant Director of the Security and Support Service Division
(Assistant Director). Based upon the interviews, the Deputy made his
recommendation of three candidates (all three were white) to the Career
Board for selection. Complainant was not recommended. Believing he was
a victim of discrimination, complainant filed a formal EEO complaint
with the agency on December 20, 1996, alleging that the agency had
discriminated against him as referenced above. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ made no determination as to whether that complainant established a
prima facie case of discrimination based on race, however, she assumed,
arguendo, that complainant has established his prima facie case. The AJ
then concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that the Deputy explained that
he recommended three individuals for the position in question based on
their experience in developing information resource management strategic
plans. The Deputy determined that complainant lacked the experience
he was looking for based upon complainant's interview responses and his
observation of complainant as his second-line supervisor.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were pretext to mask unlawful
discrimination. Complainant argued that during the interview, he
articulated his experience with strategic planning through attendance
at conferences and participation in projects addressing the future of
the agency. The AJ found that complainant failed to demonstrate that
his experience was equivalent to that of the recommended individuals.
Complainant also asserted that the Deputy has never promoted an
African-American beyond the GS-13 level. The AJ noted that the Deputy
averred to this fact, however, there was no indication of a relationship
between this fact and the case at hand. Accordingly, the AJ determined
that the fact alone was insufficient to prove that the Deputy's failure
to recommend complainant was discriminatory.
The agency's final decision implemented the AJ's decision. On appeal,
complainant restates arguments previously made to the AJ. In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final decision.
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an
AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission finds that the AJ correctly
determined that there were no genuine issues of material fact and that
summary judgement was appropriate.
After a careful de novo review of the record, the Commission finds that
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 31, 2001
__________________
Date