01A31862_r
05-19-2003
Patrick K. Kilroy, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Patrick K. Kilroy v. Department of the Navy
01A31862
May 19, 2003
.
Patrick K. Kilroy,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31862
Agency No. 01-65236-005
Hearing No. 140-A2-8057X
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. , Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that complainant, an Electronic Engineer, DP-855-III
at the agency's Space and Naval Warfare Systems Center in Charleston,
South Carolina, filed a formal EEO complaint on March 27, 2001, alleging
that the agency had discriminated against him on the bases of disability
(back problem), age (D.O.B. 1-27-48), and in reprisal for prior EEO
activity when he was not selected for the position of Engineering Support
Facility Division Head.
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 concluded that complainant established a prima facie case of
disability, age and reprisal discrimination because the selectee, not in
complainant's protected classes, was selected for the Engineering Support
Facility Division Head position. The AJ further concluded, however,
that the agency articulated a legitimate, nondiscriminatory reason for
its nonselection of complainant. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination and reprisal.<1>
The AJ found that nine candidates were identified as being qualified
for the Engineering Support Facility Division Head position via the
�Resumix� system. The AJ found that two of the nine candidates declined
to be considered for the subject position. The AJ found that there
was a four-member selection panel and that each member independently
reviewed and scored the resumes of the remaining seven candidates,
including complainant, and evaluated their work histories, experience,
training, performance, and awards. The AJ found that the top three
selectees that were advanced to the interview, received scores of 287,
255, and 254, respectively, while complainant was not advanced because
he received a score of 133. Further, the AJ found that complainant's
qualifications for the subject position was not "observably superior"
to the qualifications of the selectee. Specifically, the AJ noted
it was the recommending official's determination that the selectee's
resume was extremely detailed covering his work experience, skills
and accomplishments, while complainant's resume was general without
specific information of his work. The AJ found no evidence to support
complainant's contentions that he was more qualified than the selectee.
With respect to complainant's claim that the selectee lied on his
resume, the AJ concluded that complainant provided no evidence to
support this contention. Further, the AJ determined that complainant
argued that the agency's reason for his non-selection was a pretext,
because the selectee had been purportedly preselected for the position,
and the selectee did not have the required time-in-level for the subject
position. The AJ found, however, that the directive complainant used
to support his contention actually states that the time-in-level listed
for career paths are �guidelines.� Moreover, the AJ found that there
was no evidence that any discriminatory improprieties had taken place
with regard to the selection process.
The agency's final order implemented the AJ's decision.
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 classes.
Accordingly, the agency's final action implementing the AJ's decision
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
May 19, 2003
__________________
Date
1The Commission will presume for purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.