0120162748
01-25-2018
Nigel S,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
Nigel S,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120162748
Hearing No. 520-2015-00009X
Agency No. NY130891SSA
DECISION
On August 29, 2016, 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 August 3, 2016, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert at the Agency's Center for Disability, New York Regional Office facility in New York, New York.
On December 30, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (72), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On September 19, 2013, Complainant was not selected for the position of Project Manager under Vacancy Announcement #SN-08809020-13; and
2. On September 3, 2013, Complainant was not selected for the position of Disability Program Administrator under Vacancy Announcement # SN-919088-13.
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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's/Complainant's July 29, 2015, motion for a decision without a hearing and issued a decision without a hearing on April 27, 2016. Specifically, the AJ found that Complainant established a prima facie case, that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant failed to establish that such reasons were pretextual. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
We next find that the Agency articulated a legitimate, non-discriminatory reason for its actions with regard to claim 1 when the Selecting Official (SO: male, 64 years old) averred that he was looking for a candidate with "excellent communications skills and ability to effectively interact with contacts within and outside the [Agency]." Report of Investigation (ROI) Exhibit 8, p. 5. SO further averred that the Selectee (S1: male, 50 years old):
[D]emonstrated his skills in this area on numerous occasions. He took the lead in solving direct deposit issues in Upstate NY through discussions with Area, Regional, and Central Office components as well as financial institutions. He was also the lead in organizing a number of regional conferences that required extensive negotiations with providers. I was also looking for someone who shows initiative and is proactive in taking a leadership role. [S1] was previously selected for the very competitive Regional Leadership Program. His assignment included a supervisory/management assignment in one of our field offices that gave him current exposure to the SSI program. He also acted as the Deputy Director for the Center for Programs Support during his second assignment. During this assignment he worked independently and took the lead on numerous issues.
Id.
SO next averred that Complainant "was not highly recommended by his supervisor for this position. He is not proactive and has not demonstrated the ability to handle major projects. I have received similar feedback from his previous supervisors and concur with their assessment based on my own tenure [in management]." Id., pp. 8-9. Complainant's second level supervisor (AD: male, 43 years old) confirmed SO's statement, averring that:
I recommended him for the position. I thought that for this particular position, he could do the job. I had some reservations so I gave him a recommended rather than a high recommend. . . . [Complainant] doesn't work independently. He is not proactive. While he generally completes his projects on time, there are sometimes delays. He doesn't actively participate in staff meetings and that is needed for the position. Those were my reservations.
ROI, Exhibit 9, p. 5.
With regard to claim 2, SO averred that the reason he selected the Selectee (S2: female, 62 years old) for the position was because he was looking for:
Excellent communications skills and the ability to effectively interact with leadership within and outside [the Agency]. [S2] has excellent negotiations skills as shown in her ability to formulate fraud review policy. She has also been able to make recommendations for improvement and have others willingly accept her suggestions. Working with the NY State DDS also require excellent interpersonal and communications skills which she has demonstrated through her training and mentoring.
ROI, Exhibit 8, p. 9.
With regard to Complainant, SO averred that the reason he did not select him was because he:
was not recommended by his supervisor for this position. In fact, his supervisor had six employees on the best qualified list. He highly recommended one (the selectee), recommended three others and did not recommend two (including [Complainant]). He does not show initiative or the ability to handle additional responsibilities. I have received similar feedback from his prior supervisors and concur with their assessment based on my tenure.
Id., p. 10. (Parentheses in original)
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has not met this burden. When the issue is nonselection, evidence of pretext can take the form of a showing that Complainant's qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015).
With regard to claim 1, while Complainant's qualifications are impressive, so are those of S1. A review of the record, however, does not show that Complainant's qualifications were plainly superior to those of S1. Complainant on appeal argues that the AJ erred in finding that S1 held more career positions with the Agency than did Complainant. Complainant next argues that S1 could not have worked as a temporary GS-14 supervisor because an Operations Supervisor is a GS-12 position. Finally, Complainant argues that S1 could not have written appraisals as a temporary supervisor because there were only six weeks left in the appraisal period. Following a review of the record, however, we find Complainant's arguments unpersuasive. Even assuming arguendo that Complainant is correct in his claims, such matters are not material because SO did not state that his reason for selecting S1 was the number of Agency career positions S1 held, nor by S1 as him, nor did he state the selection was due to S1's work as a temporary GS-14 supervisor, or the appraisals S1 may or may not have written. While Complainant argues such matters go to S1's credibility, we note that S1's credibility is irrelevant in this case. Even assuming arguendo that S1 lied through his teeth on this application, that has no bearing on the issue of whether or not Complainant was discriminated against by management based on his age, sex, and/or in reprisal for his EEO activity.
With regard to claim 2, we note that the Commission has held that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). Complainant argues that the AJ erred in putting "full weight on the Agency's argument that medical policy was the determining factor in the selection process, a requirement not even listed in the announcement." Complainant's Appeal Brief, p. 3. We note, however, that this misrepresents the AJ's finding. In fact the AJ found that those involved in the selection process said that S2:
[D]emonstrated in her Agency career strong initiative and communication skills and the independence to work well on her own. [S2] also received strong supervisory endorsements that highlighted her excellent abilities as an Agency trainer, as well as, having a medical experience background acquired as an Agency disability examiner.
AJ's Decision, p. 8.
While AD did mention S2's medical policy background as one of several reasons he recommended S2, given that SO averred that the reason he selected S2 was because of her communication and negotiating skills, see ROI, Exhibit 8, p.9, we find the AJ's finding to be supported by the record and we discern no basis to disturb his findings with regards to both claims 1&2.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material issue of fact, nor has he shown, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the Agency's final order.
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
January 25, 2018
__________________
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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