0120160213
01-31-2018
Kelley L.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kelley L.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160213
Agency No. CHI140713SSA
DECISION
On October 14, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 25, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that the Agency subjected him to disparate treatment on the basis of reprisal when, on July 12, 2014, he was not selected for the Benefits Authorizer position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Benefits Authorizer under Vacancy Announcement Number SI-1105425-14-DEU-RP-99. Complainant had previously been employed as a temporary Contract, Debt Contact Representative at the Agency's Debt Management Section in Chicago, Illinois. Complainant had previously separated from the Agency, in October 2013, when his contract expired and he was not retained. On September 26, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On July 12, 2014, he was not selected for the Benefits Authorizer position advertised under Vacancy Announcement Number SI-1105425-14-DEU-RP-99;
2. In October 2013, his temporary assignment ended and he was not converted to a full-time position with the Agency; and
3. Beginning on June 4, 2012, management routinely incorrectly marked his training exercises.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged with respect to claim 1. The Agency dismissed claims 2 and 3 as untimely.
CONTENTIONS ON APPEAL
Complainant did not submit a statement in support of his appeal.
The Agency contends that it properly dismissed claims 2 and 3 as untimely. With respect to claim 1, the Agency asserts that Complainant failed to show that the non-selection was based on his prior EEO activity. Specifically, the Agency contends that Complainant failed to show that its legitimate nondiscriminatory reason for not selecting him for the Benefits Authorizer position was pretextual.
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. (Aug. 5, 2015) (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").
Disparate Treatment
Complainant alleged that he was discriminated against on the basis of reprisal for prior protected EEO activity. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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).
As an initial matter, we find that the Agency correctly dismissed claims 2 and 3 as untimely. Pursuant to 29 C.F.R. �1614.105(a)(1), an aggrieved person must contact an EEO Counselor within 45 days of the incident he or she believes is discriminatory. The EEOC's regulations contained at �� 1614.105(a)(1) & (2) and � 1614.107(b) provide for the dismissal of any complaint for which a Federal employee fails to make EEO Counselor contact within 45 days of the alleged discrimination.
In the instant case, the alleged discriminatory events in claims 2 and 3 occurred, at the latest, in October 2013, but Complainant did not initiate contact with an EEO Counselor until July 21, 2014, which was well beyond the forty-five (45) day limitation period. On appeal, Complainant presented no argument or evidence explaining his untimeliness; therefore, we do not find that he warrants an extension of the time limit for initiating EEO Counselor contact.
With respect to the non-selection in claim 1, we will assume without finding, that the Complainant established a prima facie case of reprisal discrimination. The Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, management indicated that, during the background investigation, it was determined that Complainant did not meet the suitability requirements of the position, and hence was not referred for selection. In this regard, management indicated that Complainant failed to provide documentary information required under the on-going suitability requirements of the Agency indicating that he was meeting his child support obligations.
In order to prevail on his claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of reprisal for prior protected EEO activity. Complainant has failed to carry his burden to demonstrate pretext.
In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidate's qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. at 259. Beyond Complainant's bare assertions in his complaint, he has provided no evidence that the Agency retaliated against him when he failed to supply the required documentary evidence to meet the suitability requirements of the position. In failing the suitability requirements of the position, Complainant did not establish that he was more qualified for the position than the ultimate selectee. As a result, we find that Complainant has not established that the Agency's legitimate, nondiscriminatory reasons for his non-selection was a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 Complainant's 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
_1/31/18_________________
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.
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