01a04771
02-22-2001
Donald Allen, Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Donald Allen v. Social Security Administration
01A04771
February 22, 2001
.
Donald Allen,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A04771
Agency No. 99-0264-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of his sex (male),
race (Black), age (50) and reprisal for protected EEO activity under
Title VII when he was not selected for a position as a Legal Assistant,
GS-986-6/7/8, under vacancy announcement number SSA-98-305.
The record reveals that during the relevant time, complainant was employed
as a Hearings Office Clerk, GS-303-06, at the agency's Tucson, Arizona
facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
March 29, 1999. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614, the agency issued its instant final decision.
In its FAD, the agency concluded that complainant could not establish
a prima facie case of reprisal, but did establish a prima facie case of
discrimination based on sex, race and age, inasmuch as three of the four
selectees were female, three were Caucasian and one was under age forty.
The agency found that complainant failed to establish that the selecting
official's articulated reasons for selecting the other candidates were
a pretext for discrimination.
Complainant timely appeals, but without offering any argument. The agency
requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue), the Commission agrees with the agency that complainant
established a prima facie case of sex, race and age discrimination.
Applying the standards set forth in Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
we find that complainant also established a prima facie case of reprisal.
The agency acknowledges that the selecting official and complainant's
supervisor (who had discussed complainant's writing abilities with the
selecting official) were aware that complainant had represented another
employee who had filed an EEO complaint in September 1998. While both
officials denied that complainant's representation affected their actions,
the record shows that: (1) complainant engaged in protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and, (4) a causal
connection between the protected activity and the adverse employment
action can be inferred by the close proximity in time. Consequently,
complainant established a prima facie case of reprisal. Hochstadt,
supra.
Nonetheless, the Commission further finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that the selecting official averred that
complainant's application was not as well-written as the selectees'
applications, and that both the selecting official and complainant's
supervisor were aware that an agency Judge had mentioned that
complainant's writing skills were weak. While complainant argued that
his experience and education rendered him better qualified than some
of the selectees and that his writing skills had recently improved as a
result of his enrollment in paralegal courses, we find that complainant
failed to meet his burden of proof to establish pretext.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 22, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.