0120071007
05-15-2008
Solomon H. Toweh, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Solomon H. Toweh,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120071007
Hearing No. 100200500089X
Agency No. 04-11-015
DECISION
On December 13, 2006, complainant filed an appeal from the agency's
November 2, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission affirms the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
an Economist, GS-0110-13, at the agency's Energy Employees Occupational
Illness Compensation Program, Employment Standards Administration, in
Washington, D.C. Complainant applied for the position of Program Analyst,
GS-14, with the agency's Mine Safety and Health Administration (MSHA),
advertised under Vacancy Announcement No. MSHA-03-069. On August 21,
2003, complainant received a letter, dated August 12, 2003, from the
Human Resources Department at MSHA, stating that complainant met the
minimum qualification requirements, but was not among the group of best
qualified that was referred to the selecting official. Complainant was
originally listed on the certificate of eligible candidates for this
position; however, after the original certificate was reassessed, a
second certificate was issued and complainant was no longer on the list
of certified eligible candidates. As a result, he was not selected for
the position.
The record reveals that after the first selectee declined the offer,
the position was offered to another selectee. After the second selectee
declined the offer, the position was readvertised and those who applied
before were considered. Since complainant was found not to be among
the best qualified for the position during the initial review process,
he was not selected for the readvertised position.
On September 30, 2003, complainant contacted an EEO Counselor and
filed a formal EEO complaint on October 25, 2003, alleging that he was
discriminated against on the bases of race (Black), national origin
(Liberian), age (51), and in reprisal for prior protected EEO activity
when he was not selected for the position of Program Analyst, GS-343-14,
with the MSHA, advertised under Vacancy Announcement No. MSHA-03-069.
At the conclusion of the investigation, complainant was provided
a copy of the investigative file 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 retaliation since he failed
to produce evidence to establish that the agency officials involved in
the nonselection were aware of his previous EEO activity. The AJ then
determined that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the AJ found that the selecting
panel members mistakenly believed that they had to certify all agency
applicants, including complainant for the position at issue. Once the
error was realized, the panel reconvened and four applicants, including
complainant, were not listed on the second certificate of eligibles of
best qualified applicants for the position at issue. Complainant and the
three other excluded applicants received a rating of "Meets Requirement"
(MR) on at least one of the evaluations factors and were determined to
not be qualified for the position. The AJ further found that complainant
failed to show that his qualifications were observably superior to those
of the candidates who were certified on the corrected list. The AJ then
concluded that complainant failed to demonstrate by a preponderance of
the evidence that he was discriminated against under any of his alleged
bases. In reaching this conclusion, the AJ found that complainant
offered no evidence to show that the agency's mistake and subsequent
correction to the list of certified candidates was an intentional act of
discrimination or retaliation. As such, the AJ found that complainant
failed to establish that a genuine issue of material fact existed such
that a hearing was warranted. The agency's final action implemented
the AJ's decision finding no discrimination or retaliation.
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing in this case. Specifically, complainant argues that the
AJ required complainant to prove discrimination at this stage, rather than
determining whether a genuine issue of material fact existed such that a
hearing was warranted. Complainant also argues that the AJ erroneously
ignored complainant's request for an adverse inference to be made against
the agency since it failed to preserve or destroyed the original numerical
ratings sheets for the selection at issue. Further, complainant argues
that the AJ erred when he weighed evidence in favor of the agency and
ignored evidence that contradicted the agency's rationale for not putting
complainant forward for further consideration in the selection process.
Turning to the merits of this case, we note that in rendering this
appellate decision we must scrutinize the AJ's legal and factual
conclusions, and the agency's final order adopting them, de novo.
29 C.F.R. � 1614.405(a); see also EEOC Management Directive 110, Chapter
9, � I.B. (November 9, 1999). We must first determine whether it was
appropriate for the AJ to have issued a decision without a hearing
on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing). In the
present case, the record reflects that the parties had ample notice of
the proposal to issue a decision without a hearing, both parties were
provided with the opportunity to respond and discovery was conducted
prior to the issuance of the decision.
Further, we find that the AJ appropriately issued a decision without
a hearing. Preliminarily, we note that although complainant argues
that the record is incomplete since it does not contain the ranking
sheets for the original certificate, we find that this evidence is not
material given that the selection was made from the second certificate.
We remind the agency that EEOC regulations require that any personnel
or employment record made or kept by an employer be preserved by
the employer for a period of one year from the date of the making of
the record or the personnel action involved, whichever occurs later.
Garcia v. Department of Homeland Security, EEOC Appeal No. 01A32050
(January 7, 2005). However, in the instant case, we find that, even
without the original ranking sheets, the record is sufficiently complete
to issue a decision without a hearing and that the AJ appropriately
determined that sanctions against the agency were not warranted.
We further find that contrary to complainant's contentions, the AJ did
not weigh the evidence before him regarding the reason proffered by the
agency for re-issuing the certificate. The record supports the AJ's
findings that the selection panel members and Human Resource officials
provided that the error in the original certificate was that agency
employees were automatically determined to be certified. Complainant has
offered no evidence to support his contention that a genuine issue of
fact existed as to this matter. Although complainant contends that a
Human Resources Specialist repeatedly testified in her affidavit that
she did not instruct the selecting panel members to certify all agency
employees, we find that this alone does not establish that a genuine
issue of material fact existed or that the AJ inappropriately weighed
the testimony. We note that the AJ correctly determined that, based
on the record evidence, the selection panel members believed that they
were required to certify all agency employees. Nothing in the Human
Resources Specialist's testimony suggests otherwise.
Further, complainant provides no other evidence to contest the selecting
panel members' testimony as to why they certified complainant in the
original certificate but not in the second. Although complainant argues
that non-agency employees were also removed from the second certificate,
we find that this is not sufficiently material to show that a genuine
issue of fact existed. The selection panel members testified that they
reassessed all the candidates and removed those who received a MR rating
for any criterion. The fact that not all of the affected candidates
were agency employees does not bolster complainant's argument that the
agency's reason for removing him from the list of certified candidates
was not warranted.
Additionally, we find that the AJ appropriately determined that
complainant failed to show that a hearing was required with regard to
the merits of the case. To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
discrimination and retaliation, we find that the agency articulated
legitimate, nondiscriminatory reasons for not selecting complainant for
the position, namely, he was not on the second list of certified eligible
candidates since he received an MR rating in one criterion. In Ash
v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court held that
to infer evidence of pretext from comparative qualifications, complainant
must show (1) that the disparities between the successful applicant's and
[her/his] own qualifications were "of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over the [complainant]" (Cooper v. Southern
Co., 390 F.3d 695, 732 (2004)); or (2) that [complainant's] qualifications
are 'clearly superior' to those of the selectee (Raad v. Fairbanks North
Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)); or (3)
that "a reasonable employer would have found the [complainant] to be
significantly better qualified for the job," along with other evidence
(Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 (C.A.D.C. 1998)
(en banc)). We find in the instant case, complainant failed to offer
any evidence to show that disparities in his qualifications compared
to the selectees were of such nature that the agency could not have
reasonably chosen the selectees over complainant. Although complainant
provided a declaration specifying how he was erroneously rated MR for
his qualifications and experience with strategic planning and/or the
Government Performance and Results Act (GPRA), complainant's application
for the position did not provide that he had experience in GRPA projects.
As such, we find that complainant failed to show that a genuine issue of
material fact existed as to whether the agency's proffered reason for
not placing him on the certified list was a pretext for discrimination
or retaliation.
As such, we find that the AJ appropriately determined that no genuine
issue of material fact existed. Accordingly, 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 action finding no
discrimination or retaliation 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 (S0408)
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
___5-15-08_____
Date
8
0120071007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036