0120151236
03-02-2016
Dick M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dick M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151236
Hearing No. 510-2013-00355X
Agency No. NY-12-0616-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 15, 2015 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative at the Agency's San Juan Teleservice Center (TSC) in San Juan, Puerto Rico.
On September 13, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), disability, and in reprisal for prior protected activity when:
on May 2, 2012, he was formally notified that he was not selected for the position of Supervisory Contact Representative under Vacancy Announcement Number SN-495007-11-RO11-226.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant did not respond. On December 5, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. First, the AJ noted that there was some confusion in the record regarding the bases alleged. The AJ noted further that the statement of issues in the investigator's summary did not correspond with what was in the original acceptance letter, and the Agency had listed different bases in its Motion for a Decision Without a Hearing. The AJ noted acknowledge that the Agency investigation initially included the incorrect non-selection and listed the wrong vacancy announcement number in its acceptance letter. Nevertheless, the AJ noted that the investigator investigated all of the stated bases even if these bases were not expressly stated in the summary of the issue, and that the affidavit questions pertain to all of the bases listed above. The AJ determined that all procedural requirements have been met in the instant case.
The AJ noted that the vacancy announcement for the position of Supervisory Contact Representative (also referred to as a TSC Supervisor) was open from July 12, 2011 through July 26, 2011. Complainant applied for the subject position and made the well qualified list. The AJ noted that no panel was convened for the subject position and therefore there were no interviews conducted. Instead, the selecting official reviewed the list of well qualified candidates' application packages and spoke to each candidate's supervisor for a reference. Based in the information the selected official gathered, the selecting official made a determination to select a named female candidate for the subject position.
The AJ noted in her affidavit, the selecting official, who is also a TSC Manager, sought an applicant with strong oral and written communication skills, the ability to handle stressful situations, the ability to positively respond to unpredictable changes, the ability to manage different personalities, had teamwork skills and was self-motivated. The selecting official also stated that the candidate was required "to possess organizational/time management skills to be able [to] multi-task, be organized, and be computer-oriented, because supervisors are required to handle various issues at the same time. The candidate also needed knowledge of all SSA policies and procedures. Finally, the candidate was also required to take initiative and became visionary, seeing the big picture and thinking strategically, in order to achieve established goals."
The selecting official stated after reviewing the candidates' application packages, she made a determination to choose the selectee because she was best qualified based on her extensive experience, she had received numerous awards and she was highly recommended by her supervisor. Specifically, the selecting official stated that the selectee "had held different positions in various components in the agency. She worked in the Payment Service Center as a claims authorizer, at the Teleservice Center as TSR and Technical Assistant, and she had Claims Representative experience at a field office. Based on her application she has received numerous performance awards (ROC), a Quality Step Increase and the highest award of the agency, a Commissioner's Citation while she was Technical Assistant. She was highly recommended by her supervisor. Her supervisor described her as a leader, who has ability to engage peers and work together with others and learned new guidelines and policy and then shared her knowledge with others. She was also described as a person with excellent communication skills."
The selecting official stated that she did not select Complainant for the subject position because he "was recommended with reservations" by his supervisor. The selecting official noted that at that time, Complainant only held the Teleservice Representative and Claims Representative position. The selecting official further stated "in regard to the awards, as far as I remember from his application, he didn't have any performance awards. He had Commendable Awards, but those are based on contributions to the office and are not related to his performance...the Complainant's manager said he was very cooperative in the office and whenever he identified health and safety situations he would take the lead. His manager mentioned that they had received complaints from claimants against the Complainant. Based on complaints received, the way the Complainant uses to communicate with the public was perceived as aggressive or not done in a proper way. At times, the manager perceived Complainant as having difficulty expressing things to the public."
The selecting official stated that Complainant's race, sex, disability, and prior protected activity were not factors in her determination to select the selectee for the subject position. Moreover, the selecting official stated "my selection was based solely on the Selectee's merit and the supervisor's recommendation."
Complainant asserted that he was better qualified than the selectee. However, the AJ noted that Complainant cited his experience with the Army, his work as a union officer, and his assertion that he is more proficient in English than the selectee. The AJ, however, stated that Complainant's feelings "on what criteria should have been used in the selection do not amount to a determination that he is plainly superior...there is no evidence [the Agency] took into account positions for anyone that were outside the Agency, such as his experience in the Army. There is further nothing to establish that [Selectee's] English proficiency was in any way disqualifying or that came into consideration for any of the applicants...the Complainant does not, however, dispute that [Selectee] had more awards than he did, held more positions at the Agency than he did, and was referred more highly than he was by her Manager."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for the non-selection.2 The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. Complainant makes no new contentions on appeal. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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.
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for Complainant's non-selection. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 2, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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