0120122109
10-03-2012
Teresa A. Stewart, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Teresa A. Stewart,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120122109
Hearing No. 440-2010-001278X
Agency No. HUD 00171-2009
DECISION
On April 16, 2012, Complainant filed an appeal from the Agency's March 22, 2012, final order concerning her 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Assistant at the Agency's Grants Evaluation Division, in the Regional Office in Chicago, Illinois. The record indicated that Complainant applied for the position of Grants Evaluation Specialist position in the Agency's Chicago Office for the Office of Public and Indian Housing on April 22, 2009, via the website www.USAJOBS.gov. The position was listed under two vacancy announcements, namely Vacancy Announcement Numbers H09-DE-250202-YWz and H09-MP-251454-YWz.
In response to Complainant's application, on July 14, 2009, Complainant received two emails generated by the USAJOBS.gov website. Regarding Vacancy Announcement No. H09-DE-250202-YWz, Complainant received the email from the Office of Personnel Management (OPM) stating that Complainant was qualified for the position, however, she was not among the top rated candidates. Therefore, Complainant's name was not referred to the selecting official. In the second email concerning Vacancy Announcement No. H09-MP-251454-YWz, the email from OPM stated that her application was not considered because the application was missing the required supporting documents. Therefore, Complainant was not selected for this position either.
Complainant sent several emails to individuals seeking re-examination of her applications. Complainant's communications were directed to the Rating Official at OPM. On August 14, 2009, the Rating Official emailed Complainant stating that she was not eligible for the GS-1101 series because of her education and that her score was not within reach for the position. Complainant disagreed with the assessment from the Rating Official. She also believed that the Selecting Official with the Agency did not choose her for the position because in 2007, Complainant applied for the same position. In 2007, the Selecting Official chose a Caucasian male and a Caucasian female for the position.
On October 1, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (48) when, on August 14, 2009, Complainant learned that she was not selected for the position of Grants Evaluation Specialist under the two Vacancy Announcements.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 29, 2012.
In his decision, the AJ found that there were no material facts in dispute. The AJ noted that Complainant applied for the position under an internal and an external announcement. The applications were processed by OPM. Based on Complainant's applications, OPM rated Complainant's applications along with those of the other applicants. Based on OPM's review of the applications, it was determined that Complainant failed to provide supporting documentation and as to the other announcement, was not scored high enough for consideration by the Agency. The AJ noted that Complainant disagreed with the scores as determined by OPM. Further, the AJ indicated that the OPM individual could not have determined Complainant's race or sex from the application. In addition, Complainant provided no evidence to establish an inference of discrimination on the part of the OPM reviewer. As such, the AJ determined that Complainant could not establish a prima facie case of discrimination on the part of the Agency. The AJ noted that there was a "comedy of errors made by OPM" when it found that Complainant was not qualified. However, there was no evidence to show that the errors were based on Complainant's race, sex, or age. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. Complainant, through counsel, asserted that they opposed the AJ's issuance of a decision without a hearing. Specifically, Counsel argued that they provided evidence to show that OPM's determination of Complainant's ineligibility was erroneous. Counsel also noted that the AJ acknowledged OPM's errors resulting in Complainant not being considered for the position. The "tragic mistake" on the part of OPM could be remedied by the AJ. Therefore, Complainant requested that the matter be remanded back to the AJ for further processing. The Agency requested that the Commission affirm its decision to implement the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
Summary Judgment
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Rating Official at OPM reviewed and provided the list of eligible candidates to the Agency. There is no indication that the Agency was involved with OPM's review and rating of the applications. The Agency made its selection based on the list of eligible candidates which did not include Complainant's name. As such, Complainant was not selected by the Agency's Selecting Official for the position listed in the Vacancy Announcements.
We now turn to Complainant to establish that the Agency's reasons were pretext for discrimination. We note that Complainant asserted that the Rating Official erroneously determined that she was not eligible for the positions in question. However, Complainant has failed to show that the alleged error was based on Complainant's race, sex and/or age. The Rating Official stated that she was not aware of Complainant's protected status at the time of the rating. Therefore, we cannot find that Complainant was subjected to discrimination based on her race, sex or age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
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
October 3, 2012
__________________
Date
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0120122109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122109