0120100629
05-12-2011
Leri L. Harper, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Leri L. Harper,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100629
Hearing No. 551-2009-00106X
Agency Nos. SEA-08-0421-SSA, SEA-08-0460-SSA
DECISION
Complainant filed an appeal from the Agency’s final order dated October
20, 2009, finding no discrimination with regard to her complaints.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In her complaints, both dated May 22, 2008, Complainant, a Disability
Examiner, GS-105-12, at the Agency’s Seattle Disability Quality
Branch, alleged discrimination based on age (over 40), disability
(arthritis in hands and joints and a herniated disc in neck), and in
reprisal for prior EEO activity when: (1) on March 30, 2008, she was
not selected for the position of GS-105-13, Lead Social Insurance
Specialist (Program Leader), and (2) On March 28, 2008, she was not
selected for the position of GS-105-13, Lead Social Insurance Specialist
Program Expert. Upon completion of the investigation of the complaints,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On September 28, 2009, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
ANALYSIS AND FINDINGS
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 Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged nonselections. With regard
to claim (1), the AJ stated that Complainant applied for three vacant
positions at issue and was found qualified for the Certificate of
Eligibles under Merit Promotion procedures. Complainant, and other
qualified candidates, were interviewed by Recommending Officials, but
she was not one of the top three candidates to fill the vacant positions
at issue. A Selecting Official (SO1), considering the recommendations
of the foregoing Recommending Officials, indicated that Complainant
was not selected for any of the positions because she lacked required
program expertise and experience in non-disability programs and her
shortcomings in her ability to interact, collaborate, and communicate
effectively and professionally with others. The SO1 also stated that
Complainant did not react or interact appropriately with others and had
been found to be disrespectful and intolerant of others.
With regard to claim (2), the Agency stated that Complainant applied for
the position and was listed on the Certificate of Eligibles. A Selecting
Official (SO2) stated that he did not interview any applicants for the
position but had discussions with their supervisors. The SO2 indicated
that he reviewed a summary of candidates’ work experience, a description
of the duties required in their current position, and discussed
their abilities, expertise, and experience with their supervisors.
Specifically, the SO2 stated that although Complainant was recommended for
the position by her supervisor and met the minimum job qualifications,
he found that she did not have the necessary field operations, was not
highly skilled in systems, received low marks in collaborating with
others, and did not always react positively to feedback. On appeal,
Complainant does not contest this.
The Commission agrees with the AJ that Complainant failed to rebut
the Agency’s legitimate, nondiscriminatory reasons for not selecting
Complainant for the positions at issue. Furthermore, Complainant failed
to show that her qualifications for the positions were plainly superior
to the selectees’ qualifications or that the Agency’s actions were
motivated by discrimination. See Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995). We note that the Commission
does not address in this decision whether Complainant is a qualified
individual with a disability. Also, we note that Complainant has not
claimed that she was denied a reasonable accommodation; nor is there any
indication that she was required to work beyond her medical restriction.
Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency’s final order finding no discrimination 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
5/12/11
__________________
Date
2
0120100629
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120100629