Richard Grimes, Jr., Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 7, 2005
01a54645 (E.E.O.C. Oct. 7, 2005)

01a54645

10-07-2005

Richard Grimes, Jr., Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Richard Grimes, Jr. v. Social Security Administration

01A54645

October 7, 2005

.

Richard Grimes, Jr.,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A54645

Agency No. 04-0134-SSA

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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. For the following reasons, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as an Information Technology Specialist, GS-12 at the Office

of Disability Programs, located in Maryland. Complainant sought EEO

counseling and subsequently filed a formal complaint on January 30,

2004, alleging that he was discriminated against on the bases of race

(Black) and sex (male) when he was not selected for promotion to the

position of Information Technology Specialist, GS-13, that was posted

under vacancy announcement number H-2139.

At the conclusion of the investigation, complainant was informed of

his 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 management had articulated

legitimate, non-discriminatory reasons for complainant's non-selection

that complainant failed to rebut; namely, that the selectee was more

qualified than complainant. Specifically, the agency found that the

critical criteria for the position were experience working as a Top Secret

Systems Administrator providing advice and guidance to managers on a broad

range of security issues, and providing direction and interpretation

to staff on operational and security matters for existing systems.

The agency also found that the selectee has four years of security

experience as a Top Secret Systems Administrator, and was given a score

of 125 on his SSA-45,<1> while complainant has two years of experience

as a Security Officer, and was given a score of 115 on his SSA-45.

On appeal, complainant raised the same arguments raised in her complaint.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission.

29 C.F.R. � 1614.405(a).

A claim of disparate treatment is examined under the three-part 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 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 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 action. 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).

Upon review, the Commission finds that the agency articulated a

legitimate, nondiscriminatory reason for its action in making the

selection. The selectee had more experience as a Top Secret Systems

Administrator, which was an essential criteria for the position. Where,

as here, 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 to the

ultimate issue of whether complainant has shown by a preponderance of

the evidence that the agency's actions were motivated by discrimination.

See United States Postal Board of Governors v. Aikens, 460 U.S. 711,

713-714 (1983); Hernandez v. Department of Transportation, EEOC Request

No. 5900159 (June 28, 1990).

In nonselection cases, pretext may be found where the complainant's

qualifications are plainly superior to the qualifications of the selectee.

See Wasser v. Department of Labor, EEOC Request No. 05940058 (November

2, 1995). The Commission also notes that an employer has the discretion

to choose among equally qualified candidates provided that the employment

decision is not based upon unlawful criteria. The Commission is not

persuaded that complainant's qualifications were so plainly superior

to the selectee's qualifications and experience as to warrant a finding

of pretext. Complainant has not shown that he has more experience as a

Top Secret Systems Administrator than the selectee. We find therefore

that complainant has failed to rebut the agency's articulated legitimate,

nondiscriminatory reason. Moreover, complainant has failed to show,

by a preponderance of the evidence, that he was discriminated against

because of his race or sex.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, 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

October 7, 2005

Date

1In accordance with the Social Security

Administration/American Federation of Government Employees Merit Promotion

Plan, candidates applied for the position by submitting SSA-45's. A joint

panel of union and management employees ranked and scored the SSA-45

based on the ranking criteria provided in the vacancy announcement.