Paula I. Simpson, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a50465 (E.E.O.C. Mar. 11, 2005)

01a50465

03-11-2005

Paula I. Simpson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Paula I. Simpson v. Department of the Army

01A50465

March 11, 2005

.

Paula I. Simpson,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A50465

Agency No. ARCEHWV-03-MAR-0022

Hearing No. 170-2004-00283X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her 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., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is accepted for the Commission's de

novo review pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.

The record reveals that complainant, a Legal Instruments Examiner,

GS-963-07, at the agency's Corp of Engineers, Huntington, West Virginia

facility, filed a formal EEO complaint on June 12, 2003, alleging that

the agency discriminated against her on the bases of sex (female) and

age (D.O.B. 1/10/50) when a younger male employee was non-competitively

reassigned to a Realty Specialist, GS-1170-11, position.

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, by incorporating

the agency's motion for such. Specifically, the AJ incorporated the

agency's statement of the facts and its legal analysis and concluded that

there was no discrimination. The AJ found that complainant failed to

established a prima facie case of sex or age discrimination and that the

agency articulated a legitimate, nondiscriminatory reason for selecting

the selectee which was un-rebutted by complainant. The agency's final

order implemented the AJ's decision.

Complainant makes no contentions on appeal. In response, the agency

restates the position it took in its final order, and requests that we

affirm its final order.

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 in dispute. 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. Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude entry

of summary judgment. Factual disputes that are irrelevant or unnecessary

will not be counted." Anderson, 477 U.S. at 248. If a case can only be

resolved by weighing conflicting evidence, the issuance of a decision

is not appropriate. In the context of an administrative proceeding,

an AJ may properly issuing a decision without a hearing only upon a

determination that the record has been adequately developed for summary

disposition.

The Chief of Real Estate Division (Chief) stated that the selectee (male,

D.O.B. 10/20/54), who worked in the agency's Human Resources Division,

approached him and requested to work in the Real Estate Division.

The Chief stated that he had known him for about six or seven years

because they had worked together closely on human resources issues and

knew that he had a background in real estate. The Chief explained that

he asked the selectee's supervisor if the selectee could be detailed to

his division for 120 days. The selectee's supervisor agreed, the Chief

averred, and the selectee did very well during his 120 day detail before

returning to the Human Resources Division.

The Chief stated that one of his employees, a Realty Specialist,

was planning on retiring and was leaving vacant a position which

entailed getting the rights of unpaid entry from landowners to do

surveying, drilling or a variety of things. He explained that there

was sometimes damage done to the property and there were claims from

unhappy individuals. The Chief contended that the selectee's background

as a high school principal, where there were confrontations, was good for

dealing with those situations. The Chief offered the selectee a downgrade

reassignment from his position as a Personnel Management Specialist,

GS-201-12 to a Realty Specialist, GS- 1170-11. The Chief stated that

he did not offer the position competitively because the vacancy would

be exposed to the priority placement program. This, he stated, would

force him to select a candidate from that program if they got on the

list and that he had not had luck in the past with getting top notch

GS-11 candidates from that program. He stated that complainant was not

qualified for the position and that she did not request the noncompetitive

reassignment.

Complainant stated in the fact finding conference that the selectee had

minimal experience in real estate. While she conceded that she not was

qualified for the Realty Specialist, GS- 1170-11 position, she contended

that she was qualified for a GS-9 position, had seventeen years in the

Real Estate Division, and should have been given the position instead

of the selectee.

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the

agency has articulated such a reason, the question becomes whether the

proffered explanation was the true reason for the agency's action, or

merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,

509 U.S. 502, 511 (1993). Although the burden of production, in other

words, "going forward," may shift, the burden of persuasion, by a

preponderance of the evidence, remains at all times on complainant.

Burdine, 450 U.S. at 256.

Here, we find that the AJ correctly found that complainant has failed to

establish a prima facie case of sex or age discrimination. Specifically,

we find that complaint was not qualified for the Realty Specialist,

GS-1170-11 position. Complainant was a GS-7 and could only qualify for a

Realty Specialist, GS-9, position. We further find that the AJ correctly

concluded that the agency articulated a legitimate, nondiscriminatory

reason for selecting the selectee. The Chief stated that he reassigned

the selectee to the position because he had performed well on the detail

to the Real Estate Division and had experience that would lend itself to

the Real Estate Specialist duties that he would be assigned. Further,

the Chief stated that he did not advertize the position competitively

because he might have been forced to hire a less qualified applicant

from the priority placement program. Complainant submitted no evidence

from which a reasonable fact finder could conclude that the agency's

articulated reasons were a pretext to mask unlawful discrimination.

After a careful review of the record, the Commission finds that the AJ's

decision referenced the appropriate regulations, policies, and laws.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, we affirm the agency's final order.

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

March 11, 2005

__________________

Date