0120160223
05-23-2018
Whitney B.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Whitney B.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160223
Agency No. PHI-14-0375-SSA
DECISION
On October 17, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 20, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected him to disparate treatment on the bases of age (55), disability (physical), and reprisal for prior protected EEO activity, in connection with his non-selection for several positions with the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer, GS-09 at the Agency's Mid-Atlantic Program Service Center (MATPSC) facility in Philadelphia, Pennsylvania. On June 18, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. On March 14, 2014, he received notification that he was not selected for the MATPSC "Instructor Program" Workshop position, TAP-14-0109-GS-10, advertised under Vacancy Announcement SA-1065893-14-097;
2. On or about April 3, 2014, he was not selected for the Technical Instructor position, advertised under Vacancy Announcement Number SA-106-5892-14-097;
3. On April 28, 2014, he was not selected for the 2014-2015 Regional Development Plan;
4. In March 2014, he was not selected for the Benefit Authorizer Course Writher position, TAP-14-109-GS-10 (120-day);
5. On June 26, 2014, he was not selected for the GS-12, Supervisory Social Insurance Specialist (Assistant Module Manager) position, advertised under Vacancy ID 1115619;
6. On June 26, 2014, he received notification that he was not selected for the Managerial Associate Intern (RMDP) position, GS-301-11, advertised under Vacancy ID SA-1110238-14-132;
7. On June 26, 2014, he received notification that he was not selected for the Management Analyst position, GS-0343-11, advertised under Vacancy ID 11131883; and
8. In June 2014, his application for the Technical Instructor MATPSC OSB Training Unit, TAP-GS-10, was barred due to the requirement of a Certified or Conditional BA Instructor certification; no method of applying for a conditional BA Instructor Certification was ever announced.
At the conclusion of the investigation, the Agency 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. 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The investigative record shows that Complainant was hired for his current position under Schedule A. In each instance of the non-selections at issue, the Agency presented evidence that Complainant either did not have the requisite certification for the position; while recommended by his supervisor, was not a "highly recommended" candidate, based on his job knowledge and performance; or, failed to have the requisite time in grade for the desired position.
The Selectees, however, were all shown to be "highly recommended," based on their qualifications and credentials; had the proper certifications; or, had the requisite time in grade for the positions. Moreover, there was no showing that Agency officials charged with processing Complainant's applications were aware of any prior EEO activity on the part of Complainant. The Agency also found no evidence of discriminatory bias based on age or disability.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency's final decision is false, and without legal merit. He also references a May 14, 2014, EEOC Program Evaluation Report on the Agency to support his position that the Agency's final decisions are not credible. The Agency reiterates its position that Complainant failed to show that its legitimate, nondiscriminatory reasons for not selecting Complainant were pretextual.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that, assuming for the sake of argument Complainant established a prima facie case of discrimination based on age, disability and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, unlike Complainant, the Selectees for the positions either had the requisite certification for the position; were rated higher than Complainant; or, met the time in grade requirements.
Beyond bald assertions that the Agency is not credible, and references to reports that do not specifically relate to the facts of the instant matter, Complainant offered no evidence of discriminatory animus on the part of the Agency. While Complainant may disagree with the hiring decisions of the Agency, there is nothing in the record that demonstrates that his background is plainly superior to that of the Selectees. Ultimately, managers have discretion regarding how to best manage their offices to meet their needs and goals and it is within their authority to make business decisions. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Department of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981).
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 because the preponderance of the evidence in the record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__5/23/18________________
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.
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