Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 22, 2015

0120132942 (E.E.O.C. Jan. 22, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120132942

Hearing No. 520-2013-00127X

Agency No. NY-12-0071-SSA

DECISION
On July 30, 2013, Complainant filed an appeal from the Agency’s July 8, 2013 final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
Until he voluntarily retired on June 30, 2011, Complainant worked for the Agency as a
Contact Representative at its Springfield Avenue Office in Newark, New Jersey. He filed an
EEO complaint in which he alleged that the District Manager discriminated against him on the
basis of disability by not rehiring him as an annuitant between September 28 and December 31,
2011. At the conclusion of the ensuing investigation, the Agency provided Complainant with a
copy of the investigative report (IR) and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ
assigned to the case determined sua sponte that the complaint was appropriate for summary
judgment and issued a decision on June 19, 2013. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged.

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ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s personnel decisions unless there is evidence
of a discriminatory or retaliatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, to warrant a hearing on his disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of material fact as to whether
the District Manager was motivated by unlawful considerations of his alleged disabilities when
she decided not to rehire him as an annuitant between September and December 2011. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000). Such evidence can take the form of discriminatory statements or past personal
treatment, comparative or statistical data, unequal application of Agency policy, or deviations
from standard procedures without explanation or justification. See Hovey v. Department of
Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31, 2000).
When asked by the investigator to explain why he believed that the District Manager’s decision
not to rehire him as an annuitant was based on his disability, Complainant replied that the
period between September and December 2011 would have been the perfect time to bring him
back on board since he was still able to do the job he had been doing before his retirement. IR,
Exhibit (Ex.) 6, p. 4. The District Manager averred that on September 28, 2011, three days
before the end of Fiscal Year 2011, Complainant had called and inquired about getting his job
back, and that she was unable to hire him back because her office had no budget. She further
stated that she had contacted the area office and asked if Complainant could be rehired, but
was told no by the Area Office Director. She also averred that between October 1 and
December 31, 2011, there was no work overload that would have justified hiring Complainant
or any other annuitant. She maintained that she did not hire any annuitants during that time
frame. IR, Ex. 7, 10, 11.

While Complainant expressed his belief that the District Manager had discriminated against
him because she believed him to be disabled, he has not presented any sworn statements from
other witnesses or documents which contradict the District Manager’s explanation for not
hiring him or any other annuitants during the relevant time. The Commission has long held
that unsupported assertions are not sufficient evidence of illegal motive. Porter v. Department
of the Navy

, EEOC Petition No. 03800087 (January 14, 1981). We therefore find, as did the
AJ, that Complainant failed to raise a genuine issue of material fact as to whether the District
Manager was motivated by unlawful considerations of his disability when she declined to
rehire him as an annuitant between September 28 and December 31, 2011.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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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.

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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

Date
January 22, 2015