01a55013
11-10-2005
Richard A. McDougle, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Richard A. McDougle v. Department of Defense
01A55013
November 10, 2005
.
Richard A. McDougle,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A55013
Agency No. DFAS-DE-SANA-03-014
Hearing No. 350-2003-08523X
DECISION
Complainant filed an appeal from an agency's June 7, 2005 notice of final
action concerning his 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. In his complaint, dated January
23, 2003, complainant, an Accounting Technician, GS-525-05, in the
agency's Air Force Vendor Pay Customer Service Branch, San Antonio
Center, San Antonio, Texas, alleged discrimination based on race/color
(White) and sex (male) when on October 15, 2002, he was not selected
for DFAS Vacancy Announcement X-0037-02, Accountant, Entry Grade,
GS-510-05/Target GS-09. Following the completion of the investigation
of his complaint, complainant requested a hearing on the complaint
before an EEOC Administrative Judge (AJ). On April 15, 2004, the AJ
issued a decision without holding a hearing, finding no discrimination.
The agency's final action 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, 322-23 (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,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, the Commission finds that the grant of summary judgment
was appropriate, as no genuine dispute of material fact exists. The AJ
stated, assuming arguendo that complainant had established a prima
facie case of discrimination, that the agency has articulated legitimate
non-discriminatory reasons for its action. Specifically, the AJ noted
that the agency had 3 referral lists which included the applications
of 25 females and 3 males. A panel rated and ranked the applications
submitted by the candidates and conducted panel interviews. The panel
then referred the names to two selecting officials. The selecting
officials selected the top six ranked candidates, who scored 82, 81,
80, 79, 79, and 68, based upon job experience (60%), interview (30%),
and education (10%). Complainant, scored 61, was not selected because
his overall qualifications and his experience were not as good as those
of the selectees.
Complainant claimed that he was obviously the best qualified for the
positions at issue as he was the only candidate who had a Master's
degree and two baccalaureate degrees. However, the selecting official
explained that experience was much more important than formal education.
Specifically, the agency stated that there was no guarantee that
simply possessing a baccalaureate or masters degree implied automatic
advancement in a person's career or that they were qualified for any
particular position within the agency. After a review of the record,
the AJ determined, and the Commission agrees, that complainant provided
insufficient evidence to show by a preponderance of the evidence that
the agency's proffered reasons were pretextual.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, the agency's final
action is hereby AFFIRMED because the AJ's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence
does not establish that discrimination occurred.
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
November 10, 2005
__________________
Date