Paul M. Brown, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 11, 2009
0120080063 (E.E.O.C. Feb. 11, 2009)

0120080063

02-11-2009

Paul M. Brown, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.


Paul M. Brown,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 0120080063

Agency Nos. HQ-01-0033-SSA

HQ-01-0034-SSA1

DECISION

Complainant timely initiated an appeal from the agency's July 24, 2007

final decision concerning two captioned EEO complaints that claimed

unlawful 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. The appeal is accepted pursuant to

29 C.F.R. 1614.504.

During the period at issue, complainant was employed as a Systems

Accountant, GS-510-12, at the agency's facility in Woodlawn, Maryland.

Complainant filed the two captioned formal complaints on May 22, 2001

and May 23, 2001, respectively. Therein, complainant claimed that he

was discriminated against on the bases of race (Caucasian), national

origin (Anglo-Saxon), sex (male), age (45), and in reprisal for prior

EEO activity when:

(1) on January 26, 2001, he learned that he was not selected for the

position of Lead Management Analyst, GS-343-13, advertised under Vacancy

Announcement No. (VAN) L-1101 (Agency No. HQ-01-0033-SSA, hereinafter

referred as "Complaint 1"); and

(2) on February 13, 2001, he learned that he was not selected for the

position of Management Analyst, GS-343-13, advertised under VAN F-629

(Agency No. HQ-01-0034-SSA, hereinafter referred as "Complaint 2").

.

The record reflects that the agency consolidated Complaints 1 and 2 for

investigation.

At the conclusion of the investigation of Complaints 1 and 2, complainant

was provided with a copy of the report of investigation and notice of

his right to request a hearing before an EEOC Administrative Judge (AJ).

In accordance with complainant's request, the agency issued a final

decision pursuant to 29 C.F.R. � 1614.110(b).

In its July 24, 2007 final decision, the agency found no discrimination.

Regarding Complaint 1, the agency found that complainant failed to

establish a prima facie case of sex and age discrimination. The agency

found, however, that complainant established a prima facie case of race,

national origin and reprisal discrimination. The agency further found

that management articulated legitimate, nondiscriminatory reasons for

complainant's non-selection which complainant failed to show were a

pretext for discrimination.

With respect to Complaint 2, the agency found that complainant failed

to establish a prima facie case of race, national origin and reprisal

discrimination. The agency found, however, that complainant established

a prima facie case of sex and age discrimination. The agency further

found that management articulated legitimate, nondiscriminatory reasons

for complainant's non-selection which complainant failed to show were

a pretext for discrimination.

Complaint 1

Complainant's first-level supervisor (S1) stated that normally he and

a Recommending Official (RO) interview candidates together. S1 stated,

however, that RO was not available for the interviews for the position

of Lead Management Analyst, GS-343-13 so he interviewed all of the

seven candidates, including complainant. S1 stated that prior to the

interviews, he reviewed the candidates' application packages so he could

become familiar with their qualifications. S1 stated "I had written

standard questions that I asked each candidate." S1 stated that he was

looking for someone "who could work independently, come up with viable

recommendations and recommend the best alternative." S1 stated that

following the interviews, he recommended an identified selectee for the

subject position because "he exhibited all of the things I was looking

for; his past experience reflected that he could work independently and

he had field experience in our substantive area." S1 stated that when

the selectee "was in the regional office, he went out to field offices

conducting reviews using our management control review guide." S1 stated

that the selectee "had all the qualifications and he had performed well

in past assignments."

S1 stated that he did not recommend complainant for the subject position

because he did not have field experience or direct experience in the

management control program. S1 stated that when complainant worked with

him in the Financial Management Systems Control area, he had little

experience in management control program. S1 stated that complainant

needed "constant supervision." S1 also stated "I have been in positions

to observe his performance and be familiar with his work products, habits

and abilities since 1994." S1 stated that whenever he gave complainant

an assignment, complainant "comes back repeatedly seeking guidance and

asking for clarification. He comes in for additional guidance as he

encounters problems or gets to road blocks." S1 stated that complainant

"normally meets his target date, but it takes a while for him to digest

instructions and it takes a while for him to get a grasp of the project.

He can not consistently take a project and meet milestones and come up

with a finished project independently."

S1 stated that he later conducted another interview with the selectee with

RO, and that they came to an agreement that the selectee had the best

qualifications for the subject position. S1 stated that he then wrote

a letter to the SO recommending selectee for the subject position.

Complaint 2

The Division Director of Resource Management and Employee Services

(D1) stated that she was the recommending official for the position of

Management Analyst, GS-343-13. D1 stated that complainant's name was

listed as one of the candidates on the "Best Qualified" list (BQL) for

the subject position, and that it was the first time she saw his name.

D1 stated, however, she did not meet complainant because she did not

interview the candidates whose names were on the BQL. D1 stated while

there were approximately fifteen to twenty candidates on the BQL, she

knew probably eight or nine candidates. D1 stated that she reviewed

the candidates' application packages and "I looked at the contribution

each one made. Additionally, I examined the initiative each employee

made in providing analysis and looked at those who were performing above

their grade level at the time. This was the primary focus." D1 stated

that "there was a list of weights and factors that each applicant had

to address in their applications. I reviewed their responses to the

weight and factors."

D1 stated that other factors she took into consideration were the

candidates' ability and track record in providing advice and guidance,

good analytical ability, and "need to be a good writer and competent

in negotiating a position regarding the budget." D1 stated that she

made a recommendation of three candidates to the selecting official

(S2) based on personal knowledge. Specifically, D1 stated the three

recommended candidates "were persons with whom I worked personally.

They were members of my staff who had shown they merited selection."

Further, D1 stated that she did not discriminate against complainant

based on his race, national origin, sex, age or prior protected activity.

D1 stated that in regard to complainant's claim that his age was a factor

in his non-selection "is significantly eroded by the fact that two of

the three selectees were over 40 and possibly over 50 at the time the

selections were made."

S2 stated that D1 reviewed the candidates' application packages

"thoroughly and made a recommendation." S2 further stated that there were

"three people within one of our own divisions with the exact experience

that was needed to fill the position. One of them had been a Presidential

Intern. In that capacity he spent two (2) years in different assignments,

thus he was eminently qualified for the job. The other two individuals

were equally qualified. They all had outstanding credentials." S2 stated

that the selections were based "solely on merit."

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

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

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, 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

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In the instant case, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions which complainant did not

prove were a pretext for discrimination, and that complainant has not

demonstrated that these reasons were a pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements on appeal, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the agency's final decision because

the preponderance of the evidence of record does not establish that

discrimination occurred.

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

February 11, 2009

__________________

Date

1 The record reflects that Agency Nos. HQ-01-0033-SSA and HQ-01-0034-SSA

were formerly assigned as Agency Nos. 01-333-SSA and 01-0034-SSA.

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0120080063

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120080063