0120111990
09-13-2012
Jimmy L. Johnson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jimmy L. Johnson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111990
Agency No. ATL-10-0518-SSA
DECISION
Complainant appeals to the Commission from the Agency's final decision dated January 28, 2011, finding no discrimination. For the following reasons, we AFFIRM the Agency's final decision.
BACKGROUND
In his complaint, dated May 11, 2010, Complainant, an applicant for employment at the Agency, alleged discrimination based on age (over 40) when on April 1, 2010, he received a letter advising him that he was not selected for the position of Social Insurance Representative/Claims Representative (CR), GS-105-5/7, that was advertised under vacancy ID:SC322087 and vacancy ID:SG32201. After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged nonselection. The Agency stated that on March 10, 2010, Complainant applied for the CR position at issue within the Agency and was interviewed, in person, by three interview panelists on March 17, 2010. The interview panelists indicated that Complainant was not hired for the CR position because all three panelists rated his overall evaluation for the interview not acceptable. Specifically, the panelists indicated that during the interview, Complainant received a negative rating in each element: oral communications, interpersonal skills, and motivation. The panelists also stated that Complainant did not demonstrate the ability to achieve results, did not possess the ability to communicate effectively, did not demonstrate the motivation that was required to perform as a CR, and did not clearly express examples of his accomplishments. Upon review, we find that Complainant failed to establish that the Agency's foregoing articulated reasons were a pretext for unlawful discrimination. Furthermore, Complainant failed to show that his qualifications for the CR position were plainly superior to the selectees' qualifications or that the Agency's action was motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency's action was motivated by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
9/13/12
__________________
Date
2
0120111990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013