01a44516
10-27-2004
Shirley L. Strother, Complainant, v. Lewis C. Brodsky, Acting Director, Selective Service System, Agency.
Shirley L. Strother v. Selective Service System
01A44516
October 27, 2004
.
Shirley L. Strother,
Complainant,
v.
Lewis C. Brodsky,
Acting Director,
Selective Service System,
Agency.
Appeal No. 01A44516
Agency No. 03-01
Hearing No. 100-2004-00286X
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Program Analyst, GS-343-12,
at the agency's Readiness Division of the Mobilization Directorate in
Arlington, Virginia, filed a formal EEO complaint dated September 4,
2003, alleging that the agency had discriminated against her on the
bases of race (African-American) and sex (female) when:
on June 26, 2003, she was not selected for the position of Program
Analyst, GS-343-13, under Vacancy Announcement No. AR167183.
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.
In his decision, the AJ concluded that complainant established a prima
facie case of race and sex discrimination because she applied and was
qualified for the position of Program Analyst, GS-343-13. The AJ further
concluded that the agency articulated a legitimate, non-discriminatory
reasons for the non-selection. The AJ concluded that complainant
failed to establish by a preponderance of the evidence that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The AJ found that the Office of Personnel Management (OPM) issued a
Certificate of Eligibles numerically rating five candidates, including
complainant, for the subject position. The AJ noted that the certificate
did not identify the candidates' race or sex. The AJ further noted that
the highest ranked candidate withdrew from further consideration for
the subject position. The AJ noted that three candidates, including
complaint, received identical scores tying for the second highest rating.
The AJ found that the agency assembled an interview/selection panel to
interview the remaining four candidates and to recommend a candidate
for the subject position. The AJ noted that the panel consisted of
the Selecting Official (SO) who was complainant's former immediate
supervisor; complainant's current immediate supervisor; a Manager of the
Training Division; and a Program Analyst. On May 7, 2004, the interview
panel unanimously recommended selectee (S1) for the subject position.
The AJ noted that when S1 declined to accept the subject position, the SO
subsequently recommended a second selectee (S2) for the subject position.
Furthermore, the AJ noted that when S2 declined to accept the subject
position, the SO decided not to fill the subject position.
The AJ noted in his affidavit, the SO stated that he selected S1 for the
subject position because "he possessed extensive knowledge and experience
in areas unique to this position (manpower, exercises, COOP, etc.)."
The SO further stated that after S1 declined the subject position, he
then selected S2, but he also declined the subject position. The SO
stated that although complainant and another candidate were left on the
Certificate of Eligibles, he decided not to fill the subject position.
The SO stated that he has worked with complainant for approximately
ten years and that he "knew her capabilities and that she could not
have performed the duties of the advertised position at the Fully
Successful level." The AJ also noted in his affidavit, complainant's
current immediate supervisor (Supervisor), also one of the four panelists,
stated that although S1 and S2 declined the subject position, that they
"had experience and skills more in the line with the position advertised."
The Supervisor further stated that he felt that "neither of the two
remaining candidates had the necessary experience and would have trouble
performing the duties of the position." The Supervisor stated that he
and the rest of the panelists agreed not to fill the subject position
at that point.
Furthermore, the AJ noted in his affidavit, the Supervisory Human
Resource Specialist (Specialist) stated that the SO "can choose to not
make a selection from a given List of Eligibles" from OPM. The Specialist
further stated that the List of Eligibles has an expiration date which
is time sensitive. Furthermore, the Specialist further stated that the
SO allowed the list to expire without making an alternate selection;
and to date, the subject position is still vacant.
The agency's final order implemented the AJ's decision.
On appeal, complainant, through her representative, contends that the
AJ erred in issuing a decision without a hearing as there are genuine
issues of material fact in dispute. Complainant further states "the
most compelling error made the AJ was his acceptance of management's
non-discriminatory reason that the Complainant could not have performed
the position at the fully successful level.�
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, 322-323 (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. 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).
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. Moreover, the Commission determines that the AJ's determination
that the agency articulated a legitimate, non-discriminatory reason
for its actions was supported by the record, i.e., complainant's former
supervisor indicated that S1 had extensive knowledge and experience in
areas unique to the subject position. We further determine that the
AJ properly found that complainant did not establish that the agency's
articulated reason was a pretext for discrimination.
In conclusion, we determine that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence 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.
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
October 27, 2004
__________________
Date