01A43054_r
01-13-2005
Jacqueline Macon, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Jacqueline Macon v. Social Security Administration
01A43054
January 13, 2005
.
Jacqueline Macon,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A43054
Agency No. 02-0368-SSA
Hearing No. 130-2003-08270X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Claims Record Technician, GS-5, at the agency's Southeast
Program Service Center (SEPSC) in Birmingham, Alabama, filed a formal EEO
complaint on June 27, 2002. Therein, complainant claimed that the agency
discriminated against her on the bases of race (African-American), sex
(female), age (D.O.B. 4/5/36), and in reprisal for prior EEO activity
when she was not selected for the position of Contact Representative,
GS-962-5/6/7/8, under vacancy Announcement No. SEPSC 16-02.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
following submission of an agency Motion for Summary Judgment, finding
no discrimination.<1>
The AJ concluded that complainant established a prima facie case of
race, sex, age, and reprisal discrimination. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for
complainant's non-selection. The AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination.
The AJ found that the selecting official (SO) requested a Well Qualified
List for the Contact Representative positions. In the Well Qualified
List, sixty-eight candidates, including complainant, were identified
as being qualified for the subject positions. The SO stated that she
identified primary indicators demonstrating potential for successful
performance of the subject position, such as experience, education and
awards. The SO considered the level and number of awards to be the most
definitive indicator of performance available to selecting officials at
that time. The SO chose eighteen selectees for the subject positions.<2>
The AJ found that in her affidavit, the SO stated that the first of four
steps she used in selecting seven of the selectees was the receipt of
Quality Step Increase (QSI) or Honor awards from 1995 through 2001,
in their current positions. The second step the SO used for three
selectees was choosing those who had at least two ROCs (performance
awards) from 1995 through 2001, in their current positions. The third
step the SO used for seven selectees was choosing those who had received
at least one ROC from 1995 through 2001, in their current positions.
The fourth and final step the SO used in selecting one selectee was the
receipt of at least five awards from 1995 to 2001, using a combination of
ROCs, CASA's [Special Act], OTS [On-the Spot], and TO [Time-Off] awards.
The applicants had to have at least one performance award (OSI or ROC),
and no more than one OTS or TO award included in the five awards.
The AJ found that the SO did not select complainant for the subject
position because she did not meet the award criteria, while the selectees
met the award criteria. According to the SO, complainant "received the
following awards since 1995: CASA (2-01), OTS (4/00), CASA (2/99), CASA
(8/97), CASA (8/96), and OTS (6/95)." Furthermore, the SO stated that
complainant had not received an ROC from 1995 through 2001.
The agency's final order, dated May 10, 2004, implemented the AJ's
decision.
On appeal, complainant, through her representative, contends that the AJ
erred in granting a summary judgment. Complainant argues in pertinent
part that she in fact met the award criteria because of her receipt
of a 1998 ROC award. Complainant states that the a review of the SO's
affidavit "appears to be written as if she somehow innocently overlooked
the Complainant's 1998 ROC."
As this is an appeal from an agency decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
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. 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 does not sit as a
fact finder. Id. 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. A disputed 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,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of a case. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. In the context
of an administrative proceeding, an AJ may properly consider summary
judgment 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).
The courts have been clear that summary judgment is not to be used as
a �trial by affidavit.� Redmond v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, �there is a need for strident
cross-examination and summary judgment on such evidence is improper.�
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). �Truncation of this process, while material facts are still
in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives complainant of a full and fair investigation
of her claims.� Mi S. Bang v. United States Postal Service, EEOC
Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to �ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
Here, there is a genuine issue of material fact in dispute.
Specifically, we find that there is a dispute regarding whether
complainant should have been selected for the position of Contract
Representative, based on the criteria employed in the selection
process. Complainant's receipt of a 1998 ROC award appears to meet the
criteria employed by the SO in the third step identified by the SO, as
discussed above. However, in her affidavit, the SO stated that she did
not select complainant for the subject position because she did not meet
the award criteria; and that complainant had not received a ROC from 1995
through 2001 in her current position. We note however that complainant,
on appeal, argued that the AJ overlooked her 1998 ROC award Furthermore,
we note that a review of the record contains a copy of complainant's
Form 50-B reflecting her ROC award, effective March 1, 1998.
In light of the disputed issue of material fact on the instant record,
issuance of a decision without a hearing was not warranted under 29
C.F.R. � 1614.109(g). Therefore, the Commission VACATES the agency's
final order and REMANDS the matter for a hearing in accordance with this
decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Birmingham District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 13, 2005
__________________
Date
1The record contains no copy of the agency's
Motion for Summary Judgment.
2The record reveals that on April 25, 2002, a separate SO selected
one candidate for the subject position because the original SO began a
long-term detail, effective April 1, 2002.