0120103029
09-28-2010
Lester Moody, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lester Moody,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120103029
Agency No. HQ-10-0097-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 28, 2010 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. the Agency's decision finding no discrimination is AFFIRMED.
BACKGROUND
Complainant alleged that the Agency discriminated against him on the bases of race (Black), disability (bi-polar disorder), age (51), and reprisal for prior protected EEO activity when he learned on October 16, 2009, he was not selected for the position of Social Insurance Specialist, GS-0105-11 under Job Announcement No. SH274658. Before applying for the position, Complainant had worked for the Agency as a Benefits Technical Examiner from July 2007 until January 2009, when he was terminated.
After the investigation of his complaint, Complainant was provided with the Report of Investigation (ROI) and informed that he could request a final agency decision or a hearing before an EEOC Administrative Judge. When Complainant failed to request a hearing, the Agency issued its decision pursuant to 29 C.F.R. � 1614.110(b).
ANALYSIS AND FINDINGS
A complainant may establish a prima facie case by presenting evidence which, if it were not explained, would reasonably give rise to an inference of discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996). The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail in a discrimination complaint, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson, supra; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). A complainant bears the burden of establishing that the agency's articulated reason is a mere pretext for discrimination. A complainant can do this either directly, by showing that a discriminatory reason more likely motivated the agency, or indirectly, by showing that the agency's proffered explanation is unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 8 (1981).
The Agency's burden to articulate a legitimate, nondiscriminatory reason for its actions is not an onerous one. The explanation must be "set forth with sufficient clarity as to allow the employee a full and fair opportunity to demonstrate pretext." See Parker v. U.S. Postal Service,, EEOC Request No. 05900110 (April 30, 1990). The employer must provide a specific, clear, and individualized explanation for the treatment accorded the affected individual. See Teresita v. Department of Defense, EEOC Request No. 05950931 (Nov. 6, 1997); Brooks v. U.S. Postal Service, EEOC Request No. 05930625 (May 19, 1994).
As an initial matter, the Commission notes that because 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).
Upon review and assuming, without deciding, that Complainant has a disability, the Commission finds that the Agency correctly concluded that it did not discriminate against Complainant when it did not refer or select him for the position. Complainant was not referred on the Certificate of Eligibles because although he was rated best qualified as did the two referred candidates, the scores of the two referred candidates were higher than the score of Complainant. Complainant accordingly was not referred.
The affidavit of the Human Resource Specialist (HRS), who began working for the Agency in April 2009 is contained in the record. ROI, Exhibit 8. He stated that that he did not know Complainant's age, race, disability, or prior EEO activity when he made the referral. Id. The HRS also stated that he referred only two candidates for selection out of 122 individuals who had applied for the position during the three-day open period. He stated that he queried the Office of Personnel Management Staffing System for all applicants who had scored 101 or more points because 100 was the maximum number of points that a non-veteran could receive. Id. The HRS stated that veterans with preference had an opportunity to score over 100 points but had to supply proof with their applications. He stated further that after reviewing the applications of veterans claiming veteran's preference, he certified two individuals who met the qualifications for the position to the selecting official and forwarded the Certificate of Eligibles which he prepared to the administrative contacts. Id.
The HRS stated that the applicants were rated in three categories: qualified, well-qualified and best qualified. Id. He also stated that Complainant and both referred candidates were in the best qualified category. Id. The HRS stated that the two referred candidates had also established their veteran's preference. Id. He also stated that he did not look at any of the other applications because the two referred candidates were required to receive preference before any non-veteran who was in the best qualified category. Id.
The Supervisory HRS stated in her affidavit the HRS received the applications for the vacancy and prepared the Certificate of Eligibles. ROI, Affidavit 7. She stated that applicants answer a series of questions on their applications and if an applicant answers "yes" to each question, the applicant would score 100 points. The Supervisory HRS also stated that many applicants receive 100 points by answering "yes" to all questions. Id. She stated that applicants claiming veterans' preference could receive an additional five or 10 points if they established their military service. Id. The Supervisory HRS also stated that typically the HRS performs an initial computer query to pull up applications scoring in excess of 100 points. Id. She stated that in the instant case, two applications came up showing the applicants had established veterans' preference in addition to self-certifying 100 points in their answers to the application. Id. The Supervisory HRS stated that applicable regulations require that such applications receive priority and must be forwarded first to the selecting official for selection. Id.
Accordingly, the Commission finds that the Agency has articulated a legitimate, nondiscriminatory reason for its action in not referring or selecting Complainant. Complainant has failed to show that the Agency's actions were pretext to mask prohibited discrimination. His mere speculation that Agency officials involved in the selection process were motivated by discriminatory animus is not supported by the evidence. Further, Complainant has not shown that his qualifications were plainly superior to those of the referred candidates.
Construing the evidence in the light most favorable to Complainant, we find that Complainant failed to show by a preponderance of the evidence that the Agency unlawfully discriminated against him.
At all times the ultimate burden of persuasion remains with complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Complainant has failed to do so.
CONCLUSION
The Agency's finding of 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
September 28, 2010
__________________
Date
2
0120103029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120103029