01a45120
01-18-2005
Rafael Flores, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Rafael Flores v. Department of Homeland Security
01A45120
January 18, 2005
.
Rafael Flores,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A45120
Agency No. I-03-C053
Hearing No. 310-2004-00050X
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted 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 Supervisory Center Adjudication
Officer, GS-1801-13, at the agency's Texas Service Center, in Dallas,
Texas, filed a formal EEO complaint on February 26, 2003, alleging that
the agency discriminated against him on the bases of national origin
(Hispanic), sex (male), and age (D.O.B.4/14/41) when he was not selected
for the position of Supervisory Adjudications Officer, vacancy number
DS-2-11-152558BM. 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 failed to establish a prima facie case
of sex or age discrimination because one of the selectees for the position
was a male and one of the selectees was in the protected age group and not
substantially younger than complainant. The AJ found that complainant
did establish a prima facie case of national origin discrimination in
that the selectees, not in complainant's protected class, were selected
for the two Supervisory Adjudications Officer positions.
The AJ further concluded that the agency articulated a legitimate,
nondiscriminatory reason for its actions. The AJ found that the
management stated that complainant was not selected because he was number
six of six on the Office of Personnel Management (OPM) Certificate of
Eligibles and only the top four candidates were referred to the selecting
officials who selected two candidates.
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. In reaching this conclusion, the AJ found that
complainant did not establish that his qualifications were �observably
superior� to that of the selectees nor did he claim that he was more
qualified than the selectees. The agency's final order implemented
the AJ's decision. Neither the complainant nor the agency make any
contentions on appeal.
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. Chelates v. Citrate, 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,
a hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
after determining that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEC Appeal
No. 01A24206 (July 11, 2003).
The record reveals that the complaint applied for the Supervisory
Adjudication Officer position on September 9, 2002. Complainant stated
in his affidavit that he was not interviewed for the position and should
have been because OPM referred his name to the agency on the Certificate
of Eligibles. He contended that �Rule of Three� was improperly applied
in that there were four candidates referred instead of three.
In a letter to complainant, the OPM Service Center Director stated
that a Certificate of Eligibles was issued for three vacancies for the
Supervisory Adjudication Officer position. He specified that complainant
rated sixth on the list and that the agency appointing official had to
make a selection for the first vacancy from the highest eligible three
candidates. He stated that the remaining vacancies were to be filled
in the same manner.
Complainant's second level supervisor stated in her affidavit that she
made the selection for the Supervisory Adjudication Officer position
along with the Associate Director for Management. She contended only
two vacancies were filled and that complainant was not referred because
of the Rule of Three. The Associate Director for Management stated that
a female (S1) (national origin unknown, D.O.B. 12/20/56) and a male (S2)
(national origin unknown, D.O.B. 10/20/65) were selected in accordance
with the Rule of Three and complainant was not eligible to be referred.
The Administrative Officer stated in her affidavit that the Rule of
Three required that the first selectee had to come out of the highest
rated three names on the OPM Certificate of Eligibles and once that
was done the fourth name became the third name. She stated that her
office referred three names on the OPM Certificate of Eligibles to the
selecting officials and later a fourth name, S2, once S1 was selected.
She stated that complaint was not referred because he was not eligible
to be on the Certificate of Eligibles.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following this
order of analysis is unnecessary when, as here, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency a articulated legitimate, nondiscriminatory
reason for its actions. Specifically, management stated that complaint
was not selected for either of the two Supervisory Adjudication Officer
vacancies because he was not eligible to be referred to the selecting
officials under the Rule of Three. Therefore, the application of the
Rule of Three by the Administrative Officer prevented him from being
considered for selection and, as such, made her the gatekeeper to being
selected for the position in question. Complainant has submitted no
evidence to demonstrate that the Administrative Officer was motivated by
discriminatory animus. Aside from stating that he and other Hispanics,
males and employees over 40 were discriminated against in the selection
process at the Texas Service Center, complainant submitted no specific
evidence of pretext. Complainant submitted no information showing that
the Rule of Three had been used to deny his selection and had not been
utilized when selecting those not in his protected classes. Further,
there is no evidence in the record to support the conclusion that the
reasons proffered by the agency were a pretext for discrimination.
Accordingly, we find that there is no genuine issue of material
fact in dispute over the issue of whether complainant should have
been selected for the Supervisory Adjudication Officer position.
Construing the evidence in a light most favorable to complainant,
we find that complainant has failed to present evidence from which a
reasonable fact-finder could conclude that any of the agency's actions
were motivated by discriminatory animus toward complainant's protected
classes. Accordingly, the agency's final order implementing the AJ's
decision was proper and is AFFIRMED for the reasons set forth herein.
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
January 18, 2005
__________________
Date