01A04603
03-16-2001
Shirley M. Stovall, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Shirley M. Stovall v. Department of the Air Force
01A04603
March 16, 2001
.
Shirley M. Stovall,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A04603
Agency Nos. KHOF96244, KHOF96266, KHOF962536
Hearing No. 360-99-8522X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleges she was discriminated against on the basis of race
(Black), color (black), national origin (African American) and sex
(female) when on two occasions she was not referred for promotion to the
position of Computer Specialist GS-12 and when she received a periodic
performance review notice of �met�. For the following reasons, the
Commission affirms the agency's final order because the Administrative
Judge's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
The record reveals that complainant, a GS-11 Computer Specialist,
at the San Antonio Air Logistics Center, Kelly Air Force Base in San
Antonio, Texas, filed formal EEO complaints alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, complainant was provided 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,
which the agency adopted in its final order.
BACKGROUND
Complainant's appeal consists of three consolidated complaints. In
complaint #1, complainant contends that in December 1995, she was not
referred for selection to the GS-12 Computer Specialist (Programmer
Analyst) position. The position was filled through the Promotions and
Placement Referral System (PPRS) from a Merit Promotion Certificate.
Complainant ranked nineteenth of the fifty candidates.<1> Only the
top ten candidates were referred for the promotion. The selectee, a
Caucasian female, national origin unknown, was promoted to the position.
In complaint #2, complainant maintains that in January 1996, she received
a Performance Review Worksheet (PRW) which listed eight critical and non
critical duties for her position. Complainant's supervisor indicated that
complainant had �met� the standard of all eight duties but complainant
demanded to know in what areas she exceeded the standards, or what she
needed to do to have her performance elevated to �exceeded�. Complainant
refused to sign the PRW even after she was advised that the form only
provided for �met� or �not met�. In complaint #3, complainant contends
that in February 1996, she was not referred for selection to temporarily
fill a GS-12 Computer Specialist (Programmer Analyst) position. Again,
the position was filled by PPRS. Complainant ranked twenty-sixth of
the fifty candidates. Only the top ten candidates were referred for
the promotion. The selectee, a Caucasian male, national origin unknown,
was promoted to the position.
For complaint #1, the AJ found that complainant failed to establish a
prima facie case of sex discrimination because six of the ten referrals
were women and four were men.<2> With respect to race and national
origin, however, the AJ found that the complainant had established
a prima facie case of discrimination because only persons outside of
her protected group were referred for the GS-12 position. Similarly,
for complaint #3, the AJ found that complainant failed to establish a
prima facie case of race, color, national origin and sex discrimination
because candidates within complainant's protected classes were referred
for the position.<3> With regard to complaint #2, the AJ found that
complainant failed to establish a prima facie case of discrimination
since all fourteen employees evaluated received �met� on all eight of
their elements.
The AJ then found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions, namely that the referral
list was generated by PPRS, a computer program that screens and ranks
candidates for promotion based on information in its data-base which
includes the experience, education and appraisal data for all agency
civilian employees. Through progressive levels of sorting, the PPRS
prepares the completed merit promotion certificate, listing the ten
best qualified candidates for the position. With respect to complaint
#2, the agency stated that the Worksheet contained only a place to
check either �met� or �not met.� The agency maintained that no other
options were available on the form, and the supervisor was under no
obligation to advise complainant or any other employee in what areas
they exceeded standards. The AJ found that complainant failed to show
that the agency's reasons were pretextual and that the real motive for
its actions was discriminatory.
On appeal, complainant argues that summary judgment was inappropriate
since there was a genuine issue as to whether she was more qualified for
the positions than the selectees. The agency requests that we affirm
its final order.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In determining whether to
grant summary judgment, the trier of fact's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Id. at 248-49. The courts have been clear that summary judgment is not
to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766,
768 (1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). The hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
110, November 9, 1999, 6-1; see also 29 C.F.R. �� 1614.109(d) and (e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998).
Upon review, the Commission finds that no genuine issue of material fact
exists, in that there is no dispute that the computerized PPRS system
did not include complainant among the top ten ranked candidates for
either position and there is no dispute that complainant's supervisor
had no obligation outside of checking �met� or �not met� on the Worksheet.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 16, 2001
__________________
Date
1Manual adjustments made to the referral roster resulted in the raising
of complainant's ranking from 19th to 13th.
2The Commission finds that the AJ erred in stating that complainant did
not establish a prima facie case of sex discrimination since four of
the candidates referred for selection were men.
3The Commission finds that the AJ again erred in stating that complainant
did not establish a prima facie case of race, color, national origin
and sex discrimination since candidates other than the complainant's
protected groups were referred for selection.