0120141860
06-28-2016
Shad R.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shad R.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141860
Hearing No. 420201300214X
Agency No. ATL130001SSA
DECISION
On April 23, 2014, Complainant filed an appeal from the Agency's February 3, 2014, final order concerning his equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer (GS-9) at the Agency's Teleservice Center ("TSC") in Birmingham, Alabama.
On November 13, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when he was not selected for a TSC Supervisor position on August 20, 2012.
In April 2012, Complainant responded to a vacancy announcement for a GS-11 or GS-12 Supervisory Contact Representative ("TSC Supervisor") position, and was among candidates with the necessary skills and experience to be placed on the Best Qualified List ("BQL"). The supervisors of the BQL Candidates were asked to complete recommendation forms; candidates, including Complainant, who received ratings of "highly recommended" were contacted to interview for the position. Unfortunately for Complainant, his interview did not go well. Complainant received a score of 8 out of a possible 20 points; the lowest out of the seventeen candidates interviewing for the position.
The interview panel was comprised of four Section Managers (GS-13), three female (one Caucasian, two African-American), and one male (Hispanic). Each of the panel members took notes and scored the candidates' responses to prepared questions based on a scale of 1 to 5 in the areas of communication skills, organizational skills, decision-making, and interpersonal skills. The interview panel had the uniform impression that Complainant did not respond to the questions asked and seemed unable to provide specific examples. For his part, Complainant describes the panel as disinterested, as though their "minds were already made up." He also felt the questions did not relate to the position and attempted to provide examples from a supervisory position held before he worked for the Agency.
The panel submitted a list of the top candidates, which did not include Complainant, to the TSC Deputy Director (African-American, male) and TSC Director (race unspecified, female), who would be the deciding officials. Neither was present for the interviews. Aside from interview performance, the top candidates were recommended based on current job performance, awards, supervisor recommendations and experience. However, the panel and the deciding officials gave "considerable weight" to interview performance because they felt that interview skills translated directly to the TSC Supervisor skill set. The panel's top two recommendations ("C1" and "C2") had scores of 17 and 20 on their interviews and the next recommendation scored 18. Both officials agreed that based on the information available, C1 (Caucasian, female) was the best choice for the TSC Supervisory position, which she was offered on August 20, 2016.
Although Complainant's appeal only concerns the August 20, 2016 selection, we note that on September 24, 2012, another TSC Supervisor position opened and Complainant was automatically placed on the BQL per Agency policy, as the new vacancy opened within sixty days of a selection for the same position. On September 26, 2012, the selecting officials used the same application packages to make their second selection, and both agreed that C2 (African-American, male) was the best fit for the position.
Upon learning that he was not selected for the first TSC Supervisor position, Complainant contacted an EEO Counselor. The Agency accepted the matter for investigation on November 23, 2012, and at the conclusion of the investigation, provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). On August 14, 2013, Complainant timely requested a hearing. The AJ assigned to the case issued an Acknowledgement and Order on September 18, 2013, among other things, providing the parties with seventy five (75) days to conduct discovery to supplement the Investigative Record. In or around January 2014, the Agency submitted a motion for a decision without a hearing, to which Complainant responded with a motion in opposition.
On the February 3, 2014, AJ issued a decision without a hearing, finding no genuine dispute of material fact or credibility to warrant a hearing on the merits, and that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. 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 Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In a non-selection case, pretext may be demonstrated in a number of ways, including a showing that Complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981) This Commission has consistently held that we will not substitute our judgment for that of the Agency unless other facts suggest that proscribed considerations entered into the process. In other words, Federal anti-discrimination law "is not a vehicle for second-guessing of employment decisions." Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998)
Complainant argues that the AJ erred when he did not hold a hearing before determining that the Agency's proffered explanation for his August 20, 2012 nonselection was not pretext. We find sufficient evidence exists in the record to show that despite Complainant's assertion that he is the "superior selectee in connection with measurable qualifications" he cannot prove upon a preponderance of the evidence that his qualifications are "observably superior" to those of C1. The crux of his argument disputes the weight the panel and deciding officials gave to some portions of the application package over others. Complainant has not demonstrated an issue of material fact or credibility to warrant a hearing, but instead appears to be asking that we substitute our judgment for that of the Agency as to what qualifications should receive more consideration when selecting a TSC Supervisor. Complainant's request is outside the purview of this Commission. Accordingly, we find that complainant failed to demonstrate that the agency's stated reasons for its action were pretext to mask discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141860
6
0120141860
7 0120141860