Carter R.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 24, 2020

2019004841 (E.E.O.C. Jun. 24, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carter R.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004841 Hearing No. 530-2016-00173X Agency No. PHI-14-0883-SSA DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated June 14, 2019, finding no discrimination regarding his 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-9 Benefit Authorizer in the Agency’s Mid-Atlantic Program Service Center, Philadelphia, Pennsylvania. Complainant indicated that he worked at the Agency as a Benefit Authorizer since September 2004. Since 2008, he applied for more than 75 job vacancies but was not selected. Complainant noted that recently, on April 20, 2015, he was selected to a GS-11 Claims Representative in the Aramingo Field Office in Philadelphia, Pennsylvania. 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. 2019004841 2 On November 7, 2014, Complainant filed his complaint which was later amended alleging the following: 1. Whether he was discriminated against based on sex (male), race (White), and in reprisal for prior EEO activity when on September 8, 2014, he became aware that he was not selected for the Social Insurance Specialist (disability) position advertised under Vacancy Announcement Number SA-114-1927-14-183. 2. Whether he was discriminated against in reprisal for prior EEO activity when on February 8, 2015, he became aware that he was not selected for the Legal Assistant position, GS-986-08 advertised under Vacancy Announcement Number SA-1288674-15- 150. 3. Whether he was discriminated against based on sex (male), race (White), and in reprisal for prior EEO activity when on April 30, 2015, he became aware that he was not selected for the Social Insurance Specialist (Claims Authorizer) position advertised under Vacancy Announcement Number SA1317568-15-174. 4. Whether he was discriminated against in reprisal for prior EEO activity when on April 30, 2015, he became aware that he was not selected for the Human Resources Assistant position advertised under Vacancy Announcement Number SA1334439-15-196. 5. Whether he was discriminated against in reprisal for prior EEO activity when on September 14, 2015, he became aware that he was not selected for the Legal Administrative Specialist (Technical Instructor) position advertised under Vacancy Announcement Number SA1149899-15-315. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On July 3, 2017, the Agency filed a motion for summary judgment without a hearing and Complainant filed his response. On May 17, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. Therein, the AJ adopted the Agency’s statement of undisputed facts in the Agency’s motion. The Agency’s final order fully implemented the AJ’s decision. Complainant appeals the Agency’s final order. ANALYSIS AND FINDINGS 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. 2019004841 3 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Complainant must initially establish a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant, a GS-9 Benefit Authorizer in the Mid-Atlantic Program Service Center (MATPSC), applied but was not selected for the Social Insurance Specialist (disability), GS-9/11 position under Vacancy Announcement Number SA-114-1927-14-183 in September 2014. The Disability Processing Branch Chief was the Selecting Official (SO1) for the subject vacancy. SO1 indicated that he selected 11 candidates for this vacancy (one from his own staff, five from the MATPSC, and five from Teleservice Center). SO1 indicated that he received a Best Qualified List (BQL) from Human Resources which had 37 applicants on the list. SO1 stated that he reviewed those BQL applications; he sent out a questionnaire to those applicants’ supervisors; he also asked for each manager of in-house candidates to give him the names of their “Top Three” employees (which was not limited to the BQL); and he met with his 2019004841 4 peer managers and their deputies to rank applicants from the MATPSC (where Complainant worked). SO1 indicated that he was looking for candidates who would work independently using automation tools with strong oral and written communication skills, as well as analytical skills. SO1 stated that 32 of 37 candidates were highly recommended by their respective managers. SO1 indicated that Complainant was highly recommend but not one of the named “Top Three” by his manager and he ranked nine out of 17 candidates in the MATPSC. Four of the selectees in the MATPSC ranked higher than Complainant with the exception of one selectee (Hispanic, female). SO1 indicated that he selected that lower ranked selectee because she worked in a developmental program and she was bi-lingual which was very important for this position. SO1 stated that Complainant did not have any big negatives, but the other selectees were better. SO1 indicated that he was not influenced by Complainant’s race, sex, or prior EEO activity. SO1 stated, as supported by the record, that he selected two candidates who were White males (of which one also had prior EEO activity) and the selections as a whole were diverse. The selectees were White/Black/Hispanic/Asian, and both females/males. Regarding claim 2, the Acting Regional Chief Counsel in the Office of the General Counsel (OGC) in Region III was the Selecting Official (SO2) for the GS-8 Legal Assistant position advertised under Vacancy Announcement Number SA-1288674-15-150. SO2 indicated that she was looking for a candidate who had specialized knowledge of legal forms and procedures; thorough knowledge of information in case files sufficient to answer inquiries from OGC Headquarters or other organizations; knowledge of the functions of various components of the OGC and knowledge of various program and titles of the Social Security Act. SO2 stated that there were 17 applicants, including Complainant, on the BQL. SO2 indicated that she selected one selectee for the position because the selectee had three years of specialized experience as a Legal Assistant in the OGC, i.e., knowledge of OGC systems, legal forms, and processes. Complainant did not have specialized experience in the OGC and never worked for the OGC. SO2 did not know Complainant and did not know his prior EEO activity. Complainant indicated that he did not know SO2. Regarding claim 3, there were three Selecting Officials (SO3s) who were involved for selecting 15 candidates for the Social Insurance Specialist (Claims Authorizer), GS-11, position on April 30, 2015. SO3s indicated that they received a competitive BQL list with 40 candidates and a non-competitive BQL list with 21 candidates. SO3s indicated that they considered the recommendations provided by the applicants’ managers, the applicants’ technical experience, and how much experience they had in their position. SO3s stated that Complainant compared very favorably to the other selectees, but they did not select him because he was already promoted to another position. The record indicates that on April 20, 2015, he was selected to a GS-11 Claims Representative in the Aramingo Field Office in Philadelphia, Pennsylvania. The SO3s indicated that two other candidates on the BQL also were not selected because they were selected to another position as Complainant was. Complainant acknowledged that he might not have been considered for the instant position because he was already selected/accepted to his current GS-11 Claims Representative position in the field office on April 20, 2015. 2019004841 5 Regarding claim 4, the Supervisory Human Resources Specialist was the Selecting Official (SO4) for the GS-7, Human Resources Assistant position. SO4 stated that he received the BQL which had 15 candidates on that list, including Complainant. SO4 indicated that he selected a candidate, White, female with no prior EEO activity, for the position at issue on April 30, 2015. SO4 stated that he did not select Complainant because his application reflected that the lowest grade he would take was a GS-11 grade level. The SO indicated that four other candidates who also stated that the lowest grade they were willing to accept exceeded the grade advertised in the vacancy announcement were not considered for the same reason. SO4 indicated that the selectee had prior experience in Human Resources; she had a good management recommendation; and she indicated that she would accept a GS-7 grade level. Regarding claim 5, the Chief of Operations Support Branch was the Selecting Official (SO5) for the GS-10, Legal Administrative Specialist (Technical Instructor) position. SO5 indicated that she received the competitive BQL from the Human Resources Specialist (HRS) that had five candidates’ names on that list and Complainant’s name was not on that list. SO5 stated that she did not know Complainant or his prior EEO activity or that he applied for the position. Complainant, who had been in the GS-11 Claims Representative position since April 20, 2015, stated that he did not know SO5. SO5 stated that after reviewing the applications of those candidates from the competitive BQL and considering their managers’ recommendations, she selected two candidates on August 23, 2015. One selectee was a GS-10, Legal Administrative Specialist (Technical Instructor - Temporary) and the other was a GS-9, Legal Administrative Specialist (Benefit Authorizer) at the time of their application. The HRS stated that his duties involved preparing vacancy announcements; reviewing applications, processing personnel actions; and consulting with employees, managers, and the public about the staffing process. The HRS indicated that there were 11 applicants and that five were eligible, five were ineligible, and Complainant who was an exception as a noncompetitive candidate. The HRS thought he had referred both the competitive and noncompetitive lists to SO5. The HRS stated that he did not know Complainant or his prior EEO activity. The HRS indicated that on August 19, 2015, SO5 sent him an email asking him to certify that two candidates she selected were qualified which he did. On September 3, 2015, SO5 properly returned the competitive certificate back to the HRS. The next day, stated the HRS, he looked at the certificate and realized he made a mistake. The HRS indicated that he believed that he sent both competitive and noncompetitive lists to SO5 when in fact, he only sent one. The HRS indicated that “It was a simple, honest mistake” and he simply “did not hit the ‘send’ button” when he should have for the noncompetitive list. The HRS stated that since the selection was already made, he sent SO5 the noncompetitive certificate which had only Complainant’s name on it; asked her to properly code it as a nonselection; and return it to him. The HRS indicated that it was too late to do anything at that time. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the complaint was properly decided without a hearing and that the AJ properly adopted the Agency’s undisputed facts. 2019004841 6 Upon review, the AJ found, and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Further, the AJ determined Complainant did not establish discriminatory animus or retaliatory intent. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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). 2019004841 7 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 24, 2020 Date