0120073583
06-04-2010
Stanley S. Williams, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Stanley S. Williams,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073583
Agency No. ATL-06-1909-SSA
DECISION
On August 14, 2007, complainant filed an appeal from the agency's July
9, 2007 final decision 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.; 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(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether complainant demonstrated by a preponderance
of the evidence that he was discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
a Claims Representative, GS-0105-11, in the agency's Fayetteville,
North Carolina District Office. In October 2005, complainant applied
for the position of Supervisory Social Insurance Specialist, GS-0105-12,
under Vacancy Announcement No. SSA-1-2006. On or about October 23 2005,
complainant was informed that he was not selected for the position.
On March 15, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Black) sex (male), age (51)
and reprisal for prior protected EEO activity when he was not selected
for the position Supervisory Social Insurance Specialist, GS-0105-12,
under Vacancy Announcement No. SSA-1-2006.
At the conclusion of the investigation, 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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The agency concluded that complainant failed to prove that
he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant raises no contentions on appeal. The agency requests that
we affirm its finding of no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, because the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
The record reveals that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant. Specifically,
the District Manager, who was the selecting official for the position,
provided affidavit testimony regarding the reason he chose the selectee:
[The selectee] had more recent experience (experience in the past 2
years) and came highly recommended by her supervisor. The [selectee]
had recent experience in the following areas where the complainant had no
recent experience; as a trainer, experience using automation tools, and
knowledge of the program changes in T2 and T16. The recent experience is
important due to the changes in the past two years in program procedures
and the use of automation tools in processing and monitoring work.
Report of Investigation (ROI), Exhibit 7 at 4.
In order to establish that the agency's proffered reasons are a pretext
for discrimination and retaliation, complainant stated in his affidavit
that he believed he was better qualified because he "previously performed
the duties of an SSA Operations Supervisor, the position in question"
ROI, Exhibit 6 at 3. Complainant further stated that he received an
excellent appraisal for his performance and had previous experience
with personnel matters. Id. Complainant further contends that the
selectee did not have the same experience. Id. However, according to the
Concurring Official, complainant had not occupied a supervisory position
since October 15, 1995. Id. In non-selection cases, a complainant
can establish pretext by showing that his qualifications are "plainly
superior" to those of selectee. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). Complainant has failed to put forth sufficient evidence
to rebut the agency's reasons for choosing the selectee over complainant.
Accordingly, we find that complainant has not demonstrated that his
qualifications were plainly superior to those of the selectee.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
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
June 4, 2010
Date
2
0120073583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073583