0120101814
08-10-2010
Anthony W. Chambers, Complainant, v. Michael Astrue, Administrator, Social Security Administration, Agency.
Anthony W. Chambers,
Complainant,
v.
Michael Astrue,
Administrator,
Social Security Administration,
Agency.
Appeal No. 0120101814
Agency No. OCO-09-0556-SSA
DECISION
On March 24, 2010, Complainant filed an appeal from the Agency's Final Decision issued on March 1, 2010, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
ISSUE PRESENTED
Whether Complainant established that he was discriminated against based on age (55) and sex (male) when he was not among the applicants submitted to the Selecting Official for consideration regarding a Lead Contact Representative position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Direct Contact Representative. On July 14, 2009, he filed a formal complaint of discrimination regarding what has been identified above as the issue presented. The Agency accepted Complainant's complaint for investigation and at the conclusion thereof provided Complainant a copy of the report of investigation and notice of right to request either a hearing before an AJ or Final Agency Decision on the record. Complainant did not request a hearing so the Agency issued a Final Decision on the merits pursuant to 29 C.F.R. � 1614.110(b). Complainant initiated this appeal without comment.
ANALYSIS AND FINDINGS
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). Specifically, the Agency stated that Complainant was not placed on the Best Qualified List because the Recruiting Specialist who compiled the list determined that out of the 41 candidates competing for the job, Complainant was not among the top candidates with respect to his level of experience or expertise on key factors for the position.1
Thus 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); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). The record indicates that of the 16 candidates deemed best qualified, 13 were female and 3 male; 8 were over the age of 40, including five who were older than Complainant. The selectee was a female who was older than Complainant. We find no persuasive evidence that discrimination played a role in this selection process. According to the Recruiting Specialist, the Selecting Official (SO) never saw the applications or the scores.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency's findings are supported by the record. We hereby affirm its Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
____8/10/10______________
Date
1 According to the Recruiting Specialist, the applicants were ranked based on their scores from answering 25 questions. Candidates could attain a maximum score of 72 points. As it turned out, 16 candidates achieved the maximum score of 72. Complainant had a score of 45.
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0120080366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101814