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
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