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