01991913
08-17-2001
Phylis M. Pierce, Complainant, v. Larry G. Massanari, Acting Commissioner, Social Security Administration, Agency.
Phylis M. Pierce v. Social Security Administration
01991913
August 17, 2001
.
Phylis M. Pierce,
Complainant,
v.
Larry G. Massanari,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01991913
Agency No. 98-0080-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis of sex (female) when she was not selected for an
Administrate Law Judge (ALJ) position under Vacancy Announcement Number
318, for the August 1997 class, by the Office of Hearings and Appeals
(OHA).
For the following reasons, the Commission AFFIRMS the agency's final
decision finding no discrimination.
The record reveals that during the relevant time, complainant was
employed as a GS-13 Attorney-Advisor in OHA at the agency's Kingsport,
Tennessee facility. Complainant took the examination for an ALJ position
in January 1997, and received a score of 87.7. While her name was placed
on the main ALJ Register, she was not selected because the cut-off
score for referrals to OHA was 90.9. Believing she was a victim of
discrimination, complainant sought EEO counseling on September 5, 1997,
and subsequently filed a formal complaint on October 23, 1997. At the
conclusion of the investigation, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of discrimination based on sex. The agency also concluded
that there was a legitimate, nondiscriminatory reason for its actions.
In particular, the agency noted that the selection process for ALJ
positions is administered by the Office of Personnel Management (OPM).
Once the candidates are scored and rated, OPM maintains a Register of
Eligible applicants and forwards the list when requested by the agency.
The agency can neither change the order of candidates nor consider
applicants not referred by OPM. The agency further concluded that
complainant failed to show that the reason it articulated was pretext for
discriminatory animus. Complainant argues that because veterans tend to
be male, application of the veterans preference statute has a disparate
impact upon females and, therefore, OHA is discriminating against women
by hiring from �illegal certificates.� The agency requests that we
affirm its FAD.
The United States Supreme Court in Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256 (1979), held that the classification
between veterans and nonveterans established by a Massachusetts veterans
preference statute was not an invidious classification based on sex.
The Court reasoned that veterans preference statutes do not constitute
an invidious classification based on sex, notwithstanding the adverse
impact upon women, because the definition of veterans is gender neutral
and could include women. The Court also noted, that a significant number
of nonveterans disadvantaged by such statutes are men. Moreover, the
Court held that the statutes serve a legitimate, noninvidious purpose.
Id. at 275.
Based on the foregoing, we find that the agency did not err when it
found that complainant was not discriminated against on the basis of sex.
Therefore, after a careful review of the record, including complainant's
contentions, the agency's response, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 17, 2001
__________________
Date