Cornelius R. Holmes, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJun 17, 2010
0120091688 (E.E.O.C. Jun. 17, 2010)

0120091688

06-17-2010

Cornelius R. Holmes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Cornelius R. Holmes,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120091688

Hearing No. 570-2008-00335X

Agency No. ODAR070334SSA

DECISION

On March 10, 2009, Complainant filed an appeal from the Agency's February

10, 2009 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. 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.

ISSUES PRESENTED

1. Whether the EEOC Administrative Judge (AJ) properly issued a decision

without a hearing.

2. Whether the AJ properly found that Complainant was not subjected to

race discrimination when the Agency failed to select him for a GS-950-15

Supervisory Paralegal Specialist position.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Support Services Supervisor, GS-342-14, in the Agency's Division

of Material Recourses (DMR) in Falls Church, Virginia.

The record reveals that on November 20, 2006, Vacancy Announcement Number

Y-1096, opened seeking to fill five Supervisory Paralegal Specialist

(Division Director), GS-950-15, positions in the Office of Appellate

Operations (OAO) Falls Church Virginia. The announcement closed on

December 1, 2006. On November 20, 2006, Vacancy Announcement Number

Y-1097, opened seeking candidates for a Supervisory Paralegal Specialist,

GS-950-15, position in OAO in Woodlawn, Maryland. The announcement

closed on December 1, 2006. Complainant applied under both vacancy

announcement numbers.

Complainant was one of 18 candidates on the Best Qualified List referred

to management for consideration under Announcement Number Y-1096.

Complainant was one of four candidates on the Best Qualified List referred

to management for consideration under Announcement Number Y-1097.

The Deputy Commissioner was the selecting official, and the Executive

Director and Director of Operations were the recommending officials.

In a memorandum to the selecting official dated January 30, 2007, the

Executive Director recommended five Caucasian candidates for the Falls

Church position and one Caucasian candidate for the Baltimore position.

The six recommended Caucasian candidates were selected for the position.

On May 24, 2007, Complainant filed an EEO complaint alleging that

he was discriminated against on the basis of race (African-American)

when the Agency failed to select him for GS-950-15 Supervisory Paralegal

Specialist positions advertised under Vacancy Announcement Numbers Y-1096

and Y-1097.

In an investigative affidavit, the Executive Director (Caucasian) stated

that he was Complainant's second-line supervisor, and he received the

candidates' applications with the Best Qualified List. He stated that

he asked the Director of Operations to review the application packages,

and she told him who she thought would be the best candidates for

the positions. He stated that he and the Director of Operations did

not rank, rate, or interview the candidates. He stated that because

the position required candidates who could provide direction to Branch

Chiefs, he evaluated the candidates with respect to their experience

taking the lead on issues that affected the adjudication process in more

than one branch.

The Executive Director further stated that each selectee had more

extensive experience than Complainant in areas most similar to the

responsibilities of the Division Director. He stated that he did not

believe that Complainant's experience as Acting Division Director in

the Division of Material Resources (DMR) at the GS-15 level made him

better suited for the position of Division Director because employees

in DMR are not directly involved in the adjudication of social security

disability cases. Additionally, the Executive Director stated that three

selectees had been placed in coordinator positions before the selections

were made, and, in those positions, the employees performed some duties

that are similar to those contained in the Division Director position.

However, he stated that the purpose of these placements were not, however,

to mentor the employees for the Division Director positions.

The Director of Operations (African-American) stated that the relevant

positions were newly created. She stated that she discussed the

applicants with the Executive Director, and they determined the best

candidates. She stated that the Executive Director concurred with her

recommendations, and their recommendations were forwarded to the Deputy

Commissioner.

The Director of Operations further stated that she based her

recommendations on (1) how well the candidates had performed their job;

(2) how long they had been in managerial positions; and, (3) how effective

they had been as a manager because management was promoting them to

a position to manage managers. She also stated that Complainant was

in management and in a Deputy Director position, but was in another

component of the Agency (HMR). She further stated that although

Complainant previously worked as an OAO Branch Chief, he had been

away from OAO for a while. She stated when she came to work at OAO in

October 2004, Complainant had left the Branch. She stated that she was

the first-line supervisor for the all the candidates except Complainant,

and she based her decision on her knowledge of her working relationship

with the applicants.

The Deputy Commissioner (Hispanic) stated that she was the selecting

official for the positions and accepted the recommendations of the

recommending officials because she had no reason to doubt their judgment.

She stated that she always accepts the recommendations of her supervisors

because she does not typically know the candidates.

At the conclusion of the investigation, Complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing.

AJ's Decision

On June 25, 2008, the Agency moved for a decision without a hearing, to

which Complainant responded in opposition on July 11, 2008 and July 25,

2008. The AJ issued a decision without a hearing in favor of the Agency

on February 5, 2009. Specifically, the AJ found that Complainant failed

to provide any evidence that the Agency's legitimate, non-discriminatory

reasons for its actions were pretext for unlawful discrimination.

The AJ found that the Agency provided a legitimate explanation for not

selecting Complainant because the officials stated that the selectees

were the most qualified candidates for the position, and Complainant's

recent experience in DMR was less relevant than the selectees' current

experience in OAO because DMR performed work that was different from

the adjudicatory work of OAO. The AJ further noted that the Agency also

explained that the selectees gained valuable experience for the positions

by developing curricula for subordinate adjudicatory paralegals; mentoring

other OAO Branch Chiefs; participating in significant labor management

projects; establishing units to adjudicate particular types of appeals;

formulating OAO case management procedures; training OAO staff and judges;

and, serving as OAO Operations Coordinators. The Agency subsequently

issued a final order fully adopting the AJ's findings.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ improperly found no

discrimination. Complainant contends that he should have been selected

for a Division Director position because one of the selectees had not been

in a supervisory position for over 15 years, whereas he was a Branch Chief

in OAO five years before the selections were made. Complainant further

maintains that none of the selectees have skills and experience that

are superior to his qualifications. Complainant further notes that on

February 15, 2009, the Department of Justice selected him for a GS-15

position. The Agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

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.

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 110, Chapter 9, � VI.B. (November 9, 1999)

(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 fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (explaining that the de novo standard of review "requires that

the Commission examine the record without regard to the factual and

legal determinations of the previous decision maker," and that EEOC

"review the documents, statements, and testimony of record, including

any timely and relevant submissions of the parties, and . . . issue its

decision based on the Commission's own assessment of the record and its

interpretation of the law").

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). We find that the AJ properly issued a decision without a hearing

because Complainant failed to show that a genuine issue of material fact

or credibility existed.

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she 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). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, Complainant must prove, by a preponderance of the evidence, that

the Agency's explanation is pretextual. 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).

In this case, Complainant applied for the Division Director positions,

the Agency deemed him qualified for the positions, and Complainant was

not selected for a position. Further, Complainant is African-American,

and all six selectees are Caucasian. Thus, we find that Complainant

established a prima facie case of race discrimination.

Nevertheless, we find that the Agency provided legitimate,

non-discriminatory reasons for its selections. Specifically, the

recommending officials stated that Complainant was not selected for an

OAO Division Director position because Complainant's recent experience

in DMR was less relevant than the selectees' current experience in OAO

because DMR performed work that was different from the adjudicatory work

of OAO. The Agency further stated that that Complainant was also not

selected because, although he had previously worked as an OAO Branch

Chief, he had not worked in OAO in years. Additionally, the Director

of Operations stated that that she was the first-line supervisor for

all the candidates except Complainant, and she based her decision on

her knowledge of her working relationship with the applicants.

Complainant contends that he should have been selected for a Division

Director position because one of the selectees (S) had not been in a

supervisory position for over 15 years, whereas he was a Branch Chief

in OAO five years before the selections were made. However, the Agency

placed greater weight on currently working in OAO, and all the selectees

currently worked in OAO. Moreover, the record reveals that S was the

Special Projects Coordinator in the OAO Director's Office, served a

Branch Chief 1982 to 1988, and was on the reorganization workgroup

that resulted in establishing the six new division director positions.

Complainant also notes that he was subsequently selected for a GS-15

position with the Department of Justice. However, his selection for this

position with another agency is not probative evidence that discriminatory

animus existed in this case.

Complainant further maintains that none of the selectees have skills

and experience that are superior to his qualifications. However,

Complainant's claim that the selectees' do not have superior

qualifications does not prove that the Agency's explanations are

pretextual. Instead, in nonselection cases, a Complainant can establish

pretext by showing that his qualifications are "plainly superior" to

those of the selectees. Wasser v. Department of Labor, EEOC Request

No. 05940058 (November 2, 1995); Bauer v. Bailor, 647 F.2d 1037, 1048

(10th Cir. 1981). In this case, Complainant failed to provide any

evidence that would establish that he possessed superior qualifications

for the Division Director positions.

The Commission will not second guess the Agency's business decision

unless Complainant can establish that the Agency was prompted by

discriminatory animus. The focus of our inquiry is on the employer's

motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d

1003, 1012 n.6 (1st Cir. 1979). We conclude that Complainant failed

to provide any evidence from which it could be established that the

Agency's explanations were pretext for race discrimination. Thus,

we find that the AJ properly found no discrimination.

CONCLUSION

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the Agency's final

order, because the Administrative Judge's issuance of a decision

without a hearing was appropriate, and a preponderance of the

record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (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 (Z1008)

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

____6/17/10______________

Date

2

0120091688

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120091688