01A42062
07-09-2004
Susanna Montante, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Susanna Montante v. Department of Transportation
01A42062
July 9, 2004
.
Susanna Montante<1>,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A42062
Agency No. 2-02-2018
Hearing No. 100-A2-7954X
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., 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. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that at the time of the alleged discrimination,
complainant was a Personnel Management Specialist I, in the Labor
and Employee Relations Branch, Human Resources, Management Office,
Western-Pacific Region, located in Hawthorne, California. She filed a
formal EEO complaint on November 5, 2001, alleging that the agency had
discriminated against her on the bases of national origin (Mexican), sex
(female), color (dark-skinned), disability (depression and diabetes),
age (D.O.B. 11/8/44), and reprisal for prior EEO activity (arising
under Title VII) when management added two requirements for the
position of Supervisory Personnel Specialist under vacancy announcement
AWA-AHR-01-2EC-54332, to exclude complainant from qualifying for the
position.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ).<2> The AJ issued a decision without a hearing, finding
no discrimination.<3> The AJ concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found that
management included the requirement of one year of supervisory experience
in a labor relations environment because they needed someone who could
manage a team in a complex and changing labor relations environment.
They wanted someone who could work with and direct other professionals.
The AJ also found that management added the requirement of experience as
chief negotiator of labor management agreements because negotiating pay
with a number of different organizations was fairly new to the agency,
and it was necessary to have someone with such skills in order to provide
direction to other individuals during negotiations. The AJ concluded that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination or
retaliation. Specifically, the AJ concluded that complainant failed to
produce one scintilla of evidence to support her claim and that her mere
speculation was not enough to constitute evidence of discrimination.
On appeal, complainant contends that she requested by e-mail to management
that the selection criteria be amended to allow her to compete for the
position, and that nobody responded her. Complainant also contends that
previous announcements for the same job had not contained the restrictive
criteria that prevented her from applying for the position. Finally,
complainant contends that she was more qualified than the selectee.
In response, the agency restates the position it took in its final order,
and requests that we affirm its final order.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting it, under a de
novo standard of review. See 29 C.F.R. � 1614.405(a)(stating that a
�decision on an appeal from an agency's final action shall be based
on a de novo review...�); see also EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110"), at 9-16 (providing
that an administrative judge's �decision to issue a decision without
a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo�). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis, including on the ultimate issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
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. 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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
The Commission concludes that the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact exists.
Specifically, we find, assuming arguendo that complainant established
a prima facie case of discrimination, that the agency articulated a
legitimate non-discriminatory reason for restructuring the position
requirements. While complainant argued that she was better qualified,
the record reveals that complainant never applied for the position in
question. We find that even if this was the first time that the position
contained these requirements, nothing in the record shows that the
requirements were motivated by discriminatory animus towards complainant's
protected classes. We conclude that a reasonable fact-finder could not
have concluded from the evidence proffered by complainant that unlawful
animus motivated the selection. We conclude that complainant has not �set
forth specific facts showing that there is a genuine issue for trial.�
Fed. R. Civ. P. 56(e). Therefore, for the foregoing reasons, we affirm
the agency's final order adopting the AJ's finding of no discrimination.
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
July 9, 2004
__________________
Date
1Complainant's former last name was Leon-Guerrero.
2We find that the agency correctly framed the issue for its investigation
and that complainant's �amendments� were best characterized as evidence
in support of her claim.
3The AJ also concluded that because complainant made untimely contact
with an EEO counselor, her claim should be dismissed.