01a54338_r
11-30-2005
Robert F. Clarke, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Robert F. Clarke v. Department of the Navy
01A54338
November 30, 2005
.
Robert F. Clarke,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A54338
Agency No. 03-00161-001
Hearing No. 120-2004-00688X
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 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant, an applicant for employment at the agency's Special
Collections and Archives Division of the Nimitz Library, Annapolis,
Maryland, filed a formal EEO complaint on April 30, 2003. Therein,
complainant claimed that the agency discriminated against him on
the bases of disability (neuropathy and failing eyesight) and age
(D.O.B. 6/20/32) when:
on September 11, 2001, he was not selected for the position of
Supervisory Librarian, GS-420-12, announced under Vacancy Announcement
HRSCC-01-0227/PH-NR.
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 agency thereafter filed a Motion to
Dismiss or, in the alternative, an Agency's Motion for Judgment Without
a Hearing and Response to Complainant's Motion.<1>
On March 13, 2005, the AJ granted the agency's motion for a decision
without a hearing, finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of disability and age
discrimination.<2> The AJ further found that even assuming, arguendo,
complainant established a prima facie case of discrimination, the agency
articulated legitimate, non-discriminatory reasons for its actions.
The AJ found that complainant failed to show that the agency's articulated
reasons were a pretext to mask unlawful discrimination.
The record reflects that nineteen candidates, including complainant,
were identified as being qualified for the position of Supervisory
Librarian, by the Human Resources Service Center-Capital Area (HRSC-Cap)
in Washington D.C. The record further reflects that the HRSC-Cap
found that these nineteen candidates were qualified because they met the
minimum qualification requirements for the subject position, and referred
them to the Selecting Official (SO) for consideration. The SO stated
that he sought an applicant "who had at least two years of specialized
experience, whereby the individual had demonstrated competence in working
with rare books, manuscripts, photographs, archives, and other special
collections materials." The SO stated that after his review of the list
of the minimally qualified nineteen candidates, including complainant,
he gave the list to the Associate Librarian (AL). The SO stated that
he asked the AL to establish a panel to review the application packages
of the candidates.
The SO stated that thereafter the AL and the panelists shared
their concerns that several of the nineteen candidates were not
minimally qualified. The SO then contacted the Lead Human Resources
Specialist (Specialist) and requested a review of the list �for minimal
qualifications." The SO stated that the Specialist then sent him a new
list that reduced the nineteen candidates to fifteen candidates who were
found qualified for the subject position, and that this revised list now
did not include complainant. The SO stated that after the panel rated
the fifteen candidates, he selected the candidate who he determined was
best qualified candidate for the subject position.
The record reflects that the Specialist stated that the SO had contacted
her with concerns "about a referral package that had been originally
prepared by the HRSC-Capital . . . � The Specialist stated that she
requested the SO to return all of the application packages of the original
nineteen candidates (including complainant's application package), in
order to determine the qualifications of the candidates. The SO stated
that after reviewing the application packages, she found that five out of
the nineteen candidates "who had been previously certified as qualified by
the HRSC-Capital were not qualified." Specifically, the SO stated that
four of the five candidates, including complainant, "were disqualified
because they lacked the experience required in the selective factor."
The SO stated that one candidate was disqualified "due to lack of both
specialized experience and the selective factor." The SO stated that
she found the remaining fourteen candidates to be qualified because
"they met the qualifications and the selective placement factor."
Further, the SO stated that the selective placement factor for the subject
position required that the candidates "meet the selective factor of two
years working with rare books or materials in an academic library."
The SO stated that after a review of complainant's application,
she gave him one year credit for his PhD at the GS-11 level. The SO,
however, stated that complainant "needed to demonstrate another year of
specialized experience as a librarian to minimally qualify him at the
GS-12 level for the position he had applied for." The SO stated that
complainant's application showed he had worked for the Public Health
Service for twenty-three years. The SO stated that because complainant
did not specify how long he worked in any particular position, it was "not
possible to qualify him as having worked full time for a year specifically
as a librarian, rather than as a manager or in some other capacity."
The SO stated that she found three other candidates disqualified for the
subject position for the same reasons as complainant, that is, for "not
being specific as to their duties and/or the time spent performing the
necessary experience." Furthermore, the SO stated that complainant's
disability and age were not factors in her determination that he was
not qualified for the subject position.
On June 12, 2005, the agency issued a final order wherein it implemented
the AJ's decision finding no discrimination.
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination. The agency's final order implementing the AJ's finding
of no discrimination 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
November 30, 2005
__________________
Date
1The record does not contain a copy of the agency's motion for a decision
without a hearing.
2The Commission presumes, for purposes of analysis only and without so
finding, that complainant is an individual with a disability.