01a35339
11-04-2004
Sarah G. Perkins, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Sarah G. Perkins v. Social Security Administration
01A35339
November 4, 2004
.
Sarah G. Perkins,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A35339
Agency No. SSA-01-0451
Hearing No. 120-A2-1276X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., 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. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, an Equal Opportunity Specialist,
GS-260-13, at the agency's Baltimore, Maryland headquarters facility,
filed a formal EEO complaint on July 12, 2001, alleging that the agency
had discriminated against her on the bases of race (African-American),
sex (female), and age (D.O.B. 5/29/04), when the agency refused to
reclassify her position to the GS-14 level.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Although the Administrative Judge adopted the
agency's statement of facts in its entirety, as well as its analysis of
the law, the Commission has determined that the material facts are not in
dispute, and that complainant's claims were evaluated through appropriate
legal analysis in the Agency's Motion for Dismissal Without Hearing.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends that there are unresolved issues that
require an assessment of the credibility of the agency's witnesses
because of inconsistences in their affidavits. Further, complainant
asserts that the desk audit of her position was not required and was
conducted as a pretext for race, sex and age discrimination. Finally,
complainant disputes the agency's motion which stated that there were
no similarly situated employees. Complainant contends that there
was a younger Hispanic male who was upgraded to a GS-14 level and
performed substantially the same work as she. The agency states that
the only evidence in the record to support complainant's assertions of
discrimination are in her statements.
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 in dispute. 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 Equipment Corporation,
846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the
potential to affect the outcome of a case. Only disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
If a case can only be resolved by weighing conflicting evidence, the
issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly issuing a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition.
Here, we find that the AJ correctly issued a decision without a hearing.
Complainant stated in her affidavit that she approached her second level
supervisor (African American male, D.O.B. 11/8/54) in June of 2000, and
requested a desk audit of her position because she believed that she was
working at the GS-14 level. After he initiated the desk audit process,
she stated that her first level supervisor (White Male, D.O.B. 1/11/43)
recommended that she rewrite her position description because he thought
she was working at the GS-14 level. In November 2000, she stated that
her second level supervisor told her that he did not believe that a desk
audit would result in her being upgraded to a GS-14 and she requested
that she not be given a desk audit. She contended that she changed her
mind in December 2000, and agreed to a desk audit which was conducted
on January 6, 2001. Complainant asserted that the findings consisted
of a one-page statement that provided a broad overview of her position
but did not adequately delineate the duties she performed.
Complainant's supervisor stated that he thought that the complainant's
position merited a GS-14 designation and supported her efforts to achieve
the upgrade and did not feel she was discriminated against on the bases
of race, sex and age. He stated that complainant was the key individual
involved with the agency's EEO program and that she coordinated policy
on EEO issues for the headquarters and for each of the agency's regions
throughout the country.
The second level supervisor stated that GS-14 duties in the Equal
Opportunity Specialist position required the development of agency policy
or substantial supervisory responsibilities. He stated that he believed
that complainant's duties, while national in scope, did not rise to the
GS-14 level. He stated that she supervised two EEO counselors on the
Dispute Resolution Team who worked mostly independently and intermittently
relied on her for supervision and guidance. He stated that he did not
have the authority to create a GS-14 position for complainant.
The Personnel Management Specialist (White female, D.O.B. 9/8/42),
who conducted the desk audit of complainant's position, stated that
complainant's job duties did not meet the requirements of a GS-14
position as set forth in the position classification standard for Equal
Employment Opportunity Series GS-0260. Specifically, she contended that
the standard required the position to be involved in solving complex
systemic problems of an agency-wide scope. She noted that the changes
that complainant made to the agency EEO counseling program were procedural
rather than programmatic. She asserted that complainant did not show
that she spent more than 25 percent of her job in a role as a team leader
since the members of her team worked independently. She concluded that
without proof of team leader status or having provided solutions to
systemic problems, there was no justification for her position being
upgraded to a GS�14 level.
With respect to the Hispanic male who was upgraded after a desk audit, the
Personnel Management Specialist stated that based upon her conversations
with his supervisor and her review of the information that she was
provided regarding his duties, she concluded that he should be upgraded
to a GS-14. She stated that he spent more than 25% of his time as a team
leader supervising four full-time employees and two part-time employees
on his team.
The Director, Center for Classification and Organization Management (White
male, D.O.B. 3/15/46) stated that he was the first level supervisor
of the Personnel Management Specialist who conducted complainant's
desk audit. He stated that he routinely reviewed and discussed her
audit findings which he did in the case of complainant's desk audit.
He contended that complainant only supervised two individuals who worked
independently and she was unable to demonstrate that she spent over 25%
of her time on team leader duties. While complainant could have been
upgraded to a GS-14 without the team leader duties, he asserted that she
did not perform duties which involved solving complex systemic problems
of an agency-wide scope.
The General Schedule Leader Grade Evaluation Guide provides that a
team leader must spend at least 25% of their duty time on team leader
duties to obtain a higher grade than other team members. The record
revealed that the Position Classification Standard for Equal Employment
Opportunity Series GS-0260 provides that non-supervisory GS-14 positions
must involve solving complex systemic problems of an agency-wide scope.
Initially, the AJ erred in finding that complainant failed to establish a
prima facie case of race, sex or age discrimination. Here, a similarly
situated younger Equal Opportunity Specialist, GS-260-13 (Hispanic
male) was the subject of a desk audit and was upgraded to a GS-14 level
position. Therefore, complainant was treated differently than similarly
situated employees of different protected classes and she has established
a prima facie case of race, sex and age discrimination.
The agency stated that the reason why complainant was not upgraded is that
she did not meet the classification standards for the GS-14 position.
Specifically, the agency contended she did not spend over 25% of her
time performing supervisory duties or that she did not perform duties
which involved solving complex systemic problems of an agency-wide scope.
Further, the agency asserted that the Hispanic male was upgraded because
he spent over 25% of his time performing supervisory functions.
While the agency has articulated legitimate, nondiscriminatory reasons
for its action, complainant disputes the affidavits and contends that
she did perform the duties of a GS-14. She asserts that the desk audit
was a pretext for race, sex and age discrimination. However, aside from
her assertions and her supervisor's statement that she should have been
upgraded because she coordinated policy on EEO issues agency-wide, she has
submitted no evidence that she met the agency standard for being upgraded
to a GS-14 by showing that she spent over 25% of her time performing
supervisory functions or that she performed duties which involved solving
complex systemic problems of an agency-wide scope. Further, complainant
did not submit any evidence, or cite the names of any individuals, who
had been upgraded to the GS-14 level who had not spent over 25% of their
time performing supervisory functions or had not performed duties which
involved solving complex systemic problems of an agency-wide scope.
Accordingly, we find that there is no genuine issue of material fact in
dispute over the issue of whether or not complainant should have been
upgraded to the GS-14 level. Construing the evidence in a light most
favorable to complainant, we find that complainant has failed to present
evidence from which a reasonable fact-finder could conclude that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. Accordingly, the agency's final order
implementing the AJ's decision was proper and is AFFIRMED for the reasons
set forth herein.
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
November 4, 2004
__________________
Date