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