0120091736
03-28-2012
Miriam Zawadzki, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Miriam Zawadzki,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091736
Hearing No. 530-2008-00270X
Agency No. NY-07-0481-SSA
DECISION
On February 27, 2009, Complainant filed an appeal from the Agency’s
February 4, 2009, final order concerning her 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing, finding that Complainant failed to establish that the
Agency discriminated against her in retaliation for her prior EEO activity
in violation of Title VII,1 when, on or about April 16, 2007, the Agency
failed to select her for the position of Technical Assistant (TA).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Teleservice Representative (TSR) at the Agency’s East Brunswick
Teleservice Center in East Brunswick, New Jersey. The record reflects
that Complainant applied for the TA position in March 2007, and that
she was subsequently included on the Best Qualified List (BQL), along
with the two selectees. In April 2007, Complainant learned in a staff
meeting from her second level supervisor (S2) that she was not selected
for the position[l1][td2].
The record reflects that S1, who was also the selecting official,
“assessed all applicants, applications/SSA 45’s against the same
objectives of skill, knowledge, and work experiences to perform the duties
of the position.” S1 indicated that in addition to the experience
skills and or credentials that were stated in the vacancy announcement
applicants also needed to have the ability to listen to what is being
said and present feedback in an objective manner; have organizational
skills; have the ability to research answers to complex issues and relate
this information to the TSRs in a timely fashion. Ideal candidates also
needed the ability to interact with management officials in and outside
of the Agency. S1 held no interviews, but discussed the applicants
with their supervisors. S1 felt that all the applicants had similar
background experiences, job knowledge, and awards, but found after
careful consideration that the two selectees “brought more to the
table.” S2 met with the Regional Teleservice Center Director (S3)
for the sole purpose of obtaining his concurrence with her selections.
S3 concurred and the selectees were hired for the TA positions.
On May 4, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against her as alleged above. At the conclusion
of the investigation, the Agency provided Complainant with a copy
of the report of investigation and notice of her right to request
a hearing before an AJ. Complainant timely requested a hearing.
Over Complainant’s objections, the AJ assigned to the case granted the
Agency’s September 19, 2008, motion for a decision without a hearing
and issued a decision without a hearing on January 5, 2009.
Specifically, the AJ found that Complainant failed to proffer sufficient
evidence to show that her qualifications were such that a reasonable
employer should have selected her over the selectees. The AJ stated that
Complainant did nothing more than offer her own opinion that she was
more qualified. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ improperly issued a decision
without a hearing in this matter as there are material facts in
dispute, and there are credibility determinations that need to be made.
Complainant requests that she be granted a hearing in order to prove
that the Agency’s articulated reasons for the non-selection were
pretextual[l3][td4].
The Agency requests that the Commission affirm its final order adopting
the AJ’s decision because there are no genuine issues of material fact
in dispute.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ’s legal
and factual conclusions, and the Agency’s final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (November 9, 1999)
(providing that both the Administrative Judge’s determination to issue
a decision without a hearing, and the decision itself, are subject to de
novo review). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate) or
reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and
legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
§ VI.A. (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”).
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
Complainant argues that summary judgment was improper because there are
genuine issues of material fact in dispute. Specifically, Complainant
argues that Selectee 1 (SE-1) was not as “outstanding” an employee
as presented by the Agency. Complainant alleges that evaluations of
SE-1 from employees who were in the training pool of new employees she
trained were not favorable. Complainant says that employees requested
in these evaluations that SE-1 not be allowed to train in the future.
Additionally, Complainant states that other employees have had experiences
with SE-1 where she has been described as abrupt and rude. Finally,
Complainant states that the 120 day detail to a TA position held by SE-1
was a non-competitive placement. Complainant raised no genuine issues
of material fact in dispute with respect to the Selectee 2 (SE-2). [td5]
After a review of the record, we find that there are no genuine issues
of material fact or any credibility issues which required a hearing.
Although Complainant has raised a different version of the factual
circumstances surrounding SE-1’s employment history with the Agency,
the facts she raises are not material. These facts fail to show
that Complainant was more qualified for the TA position than SE-1.
Additionally, the record has been adequately developed, Complainant
was given notice of the Agency’s motion to issue a decision without
a hearing, she was given a comprehensive statement of undisputed facts,
she was given an opportunity to respond to the motion and statement of
undisputed facts, and she had the opportunity to engage in discovery.
Under these circumstances, we find that the AJ’s decision without a
hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim, the complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, the complainant must prove, by a preponderance of the evidence,
that the agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of retaliation by
presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, the complainant may
establish a prima facie case of reprisal by showing that: (1) she engaged
in a protected activity; (2) her employer was aware of the protected
activity; (3) subsequently, she was subjected to adverse treatment by
her employer; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
Even if we assume for the purposes of this analysis that Complainant
established a prima facie case of retaliation, we find that the Agency has
articulated a legitimate non-discriminatory reason for the selection of
SE-1. Specifically in her affidavit S2 indicated that SE-1 had completed
a previous 120-day detail in the TA position. Additionally S2 indicated
the SE-1’s selection as an Instructor for new hires, and the accolades
she received for her service in this position, were favorable factors
in her selection. SE-1 also served as an EEO counselor as part of a
collateral duty, and as a chairperson for a local civic association.
S2 states that all of these factors demonstrated to her that SE-1
was in tune with the needs of individuals; has the ability to diffuse
tense situations; and is able to preserve the personal dignity of the
populations served in the TA position.
With respect to SE-2, S2 remarked that she has previously held a
higher grade of GS-11 within the Agency as a Management Analyst.
In this position SE-2 was responsible for the technical assistance of
14 hearing offices throughout the region. SE-2 served as a Regional
Training Coordinator for more than one year. SE-2 was detailed into
a position which required her to initiate studies and special projects
tracking the data collected, noting trends and potential problems and
preparing reports which included recommendations. S2 listed several
other management level positions held by SE-2 during her tenure with
the Agency. While S2 maintains that all three applicants were excellent
in the position of TSR, Complainant failed to demonstrate in her written
application that her skills were as strong as the two selectees for the
TA position.
At this point, the burden returns to Complainant to establish that the
Agency’s proffered explanation for its actions is merely a pretext
for unlawful discrimination. In non-selection cases, a complainant
can establish pretext by showing that her qualifications are “plainly
superior” to those of selectee. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). We find that Complainant has failed to proffer any
evidence to demonstrate that her qualifications are plainly superior to
those of the selectees. With respect to SE-1, Complainant contends that
her employment history with the Agency was not as “outstanding” as
the Agency had presented. While the Commission acknowledges that any
selection process is somewhat subjective, agencies have broad discretion
to choose among qualified candidates so long as that choice is not based
on unlawful criteria. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). We find, that Complainant has failed to present
any persuasive evidence to establish that the Agency’s articulated
reasons for its actions were a pretext for discrimination[l6].
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that summary
judgment was appropriate in this case; and further find no basis to
disturb the decision of the AJ. Accordingly, the Agency’s Final Order
implementing the AJ’s 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
____3/28/12______________
Date
1 Complainant filed an EEO complaint in October 2001.
[l1]When was her prior EEO activity in relation to this matter?
[td2R1]October 2001 for sex discrimination and hostile work environment.
[l3]Did she indicate what the genuine material facts were or the
credibility determinations that needed to be made? If not we should
say that in our analysis.
[td4R3]Have included -- see analysis section.
[td5]This is what I added. I am not sure if I like it here though.
Although all these arguments speak to Sj it seems out of place to
mention them before we mention what the Agency raises as a LNDR for the
selection. Thoughts??
[l6]Tiane, I don’t really hear Complainant’s voice in the draft.
What did she argue with regard to pretext. Why does she think she is
better qualified? Perhaps a cite to Bauer and the plainly superior
language.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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