0120091643
08-20-2009
Linda C. Maxie, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Linda C. Maxie,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091643
Agency No. PHI-07-0201-SSA
Hearing No. 430-2007-00440X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 5, 2009 final order concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against her on the
basis of disability (blindness-Retinitis Pigmentosis) when:
she was not selected for promotion to the position of Supervisory
Paralegal Specialist (Group Supervisor), GS-950-13, that was advertised
under Vacancy Announcement No. SSA 2006-320.
A hearing was held before an EEOC Administrative Judge (AJ). After
considering the testimony of the witnesses, the AJ determined that
complainant did not show by a preponderance of the evidence that she
was discriminated against on the basis of disability.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not a
discriminatory intent existed is a factual finding. See Pullman-Standard
v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant has not provided any persuasive argument regarding
the propriety of the AJ's finding of no discrimination. The Commission
determines that the AJ made a thorough and detailed analysis in her
final decision. Therein, the AJ determined complainant is a qualified
individual with a disability. The AJ further found that complainant
established a prima facie case of disability discrimination because
she applied and was deemed qualified for the position of Supervisory
Paralegal Specialist (Group Supervisor). The AJ also found that the
selectee, not in complainant's protected class, was selected for the
subject position. The AJ found, however, that the agency articulated
legitimate, non-discriminatory reasons for its actions which complainant
failed to show were a pretext for discrimination. Specifically,
the AJ found that the consensus of the interview panel was that the
selectee provided a better interview than complainant by offering more
in-depth responses to the questions; and offered broad experiences while
complainant's experiences were more limited.
One of the three interview panelists (P1) testified that the panel asked
the three candidates, including complainant, the same questions during
the telephone interview. P1 stated that following the interviews,
the panel came to an agreement to recommend the selectee to the
selecting official. P1 stated that the selectee's overall interview
was "very positive." P1 further stated that the selectee had "recent
field office/operations experience; had worked in 2 or 3 different SSA
components in several locations in past 6-7 years offering good variety
and breadth of experience; one of the components in which she served
was the Office of Appellate Operations (Appeal Council); she had served
as trainer or mentor in some assignments she held with the agency;
serviced in a front-line position in an office that has a reputation
as a particularly demanding office; received excellent reference from
fairly high-ranking SSA official who had worked with her; most recent
supervisor gave high marks particularly in the area of working well
within a team environment."
P1 stated that complainant's responses to the questions "were satisfactory
- not as strong nor as weak as some of the others interviewed but falling
in the middle of the group of candidates in this regard." P1 stated that
complainant "possesses solid agency experience but I did not find her
experience from the past 6-7 years to offer a great deal of breadth that
would translate into leading a group of a dozen staff holding various
staff positions." P1 stated that complainant's work experience the
last seven years "did not come across in her interview responses how her
experience and background overall distinguished her as the candidate with
the best potential for supervisory work or the skills and abilities to
take on this management position. Her responses were somewhat lacking
in this regard." Furthermore, P1 stated that complainant's disability
was not a factor in his decision not to recommend her to the selecting
official.
Another panelist (P2) testified that when she was doing the interviews
for the subject position she was looking for someone "who is going to be
a good manager, with strong leadership skills, someone who could learn
the processes but basically was bringing with them the ability to lead
the people and to manage and run the operation." P2 stated that the
panel conducted interviews by telephone and each candidate was asked
questions from a previously designed questionnaire. P2 stated that
after interviewing the candidates, the panel came to an agreement to
recommend the selectee to the selecting official because she was the
best candidate for the subject position. Specifically, P2 stated that
the selectee "came across as being very positive in the interview."
P2 also stated that the selectee had "both field office experience and the
appeals experience she had a broader experience overall with the Agency."
P2 stated that the selectee's answers to the questions "just seemed to
be much more on point."
P2 stated that she felt that complainant's responses to the questions
were not on point. P2 stated that during the relevant time she knew
complainant and was aware of her disability. Furthermore, P2 stated that
complainant's disability was not a factor in the panel's determination
to recommend the selectee to the selecting official for consideration.
The selecting official (SO) testified that during the relevant
time he was not familiar with complainant and was not aware of her
disability. SO stated that after reviewing the panel's recommendation,
he selected the selectee for the subject position. SO further stated the
selectee's recommendation from a named Deputy Associate Commissioner,
a high-ranking agency official, carried weight in his determination to
select the selectee for the subject position. Specifically, SO stated
"I would record weight to anyone within our organization who thinks that
someone has done a good job. Certainly all of those things count."
Moreover, SO stated that complainant's disability was not a factor in
his determination to select the selectee for the subject position.
Therefore, after a review of the record in its entirety, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final order because the Administrative Judge's ultimate finding,
that unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 20, 2009
__________________
Date
2
0120091643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
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