0120103544
05-25-2012
Gary D. Baumann, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
Gary D. Baumann,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120103544
Hearing No. 560-2008-00318X
Agency No. RD-2007-00621
DECISION
Complainant filed an appeal from the Agency's final order dated July 27, 2010, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In his complaint, dated June 22, 2007, Complainant alleged discrimination based on disability (amputated left thumb, reattached right index finger, carpal tunnel syndrome, narrowing of spinal cord canal), age (over 40), and in reprisal for prior EEO activity when on February 16, 2007, he was not selected for the Area Director position (GS-13) in Springfield, Missouri. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 27, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final order implemented the AJ's decision.
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 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.
After a review of the record, we find that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged nonselection. During the relevant time period at issue, Complainant worked as a Rural Development Manager (GS-12) at the St. Joseph, Missouri Office of the Rural Development Agency. In January, 2007, Complainant applied for the Area Director position (GS-13) at issue and was interviewed but was not selected.
The AJ noted that the Area Director was a member of the State Director's staff who provided administrative and technical supervision over the local offices in the designated geographical area. The AJ also noted that the evaluation factors for selecting the Area Director included knowledge of rural development programs, ability to express complex technical ideas orally and in writing, knowledge of supervisory practices, the ability to analyze and solve complex problems, and the ability to deliver loans and financing to rural areas. The AJ stated that a former State Director1 (a selecting officer) initially selected a candidate who applied for the position externally, but that candidate declined the offer. Then, the Director selected a selectee, who applied internally, as Complainant did. Specifically, the Director indicated that the selectee, who was an Area Specialist (GS-12) at that time, showed a significant level of organizational and leadership skills, processed more loans than Complainant, provided superior answers in the application and interview, and demonstrated the ability to see a broader picture of community/rural development than Complainant. The AJ stated that the selectee, while servicing as an Area Specialist: processed more than $29 million in loan and grant funds in the three years; wrote a training manual and program concerning loan and grant programs to be used by rural program managers in local offices (such as Complainant); and visited local offices to establish funding strategy. The AJ indicated that Complainant's application showed his primary duty consisted of processing loans, without the additional duties the selectee carried out. Based on the foregoing, the AJ determined that the selectee was the superior candidate for the Area Director position.
Complainant claimed that the Director told him in 2005 that "mother nature doesn't treat everybody fairly" concerning his disability. The AJ stated, assuming for the purposes of summary judgment that the statement was actually made by the Director, the statement, although in poor taste, was made two years prior to the nonselection and did not show a discriminatory attitude regarding his hiring practices on its face. After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency's legitimate, nondiscriminatory reasons for not selecting Complainant for the position. Furthermore, Complainant failed to show that his qualifications for the position were plainly superior to the selectee's qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
5/25/12
__________________
Date
1 The record indicates that the Director died in October, 2007, before the investigator assigned to this case could interview him. The record however contains his statement made during the EEO counseling of the instant complaint concerning the alleged claim at issue.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103544