01984785
04-13-2001
Charles Singleton, Jr., Complainant, v. William A. Halter, Acting Commissioner, Social Security Administration, Agency.
Charles Singleton, Jr. v. Social Security Administration
01984785
April 13, 2001
.
Charles Singleton, Jr.,
Complainant,
v.
William A. Halter,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 01984785
Agency No. 340-97-3780X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD), concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against based on race (Black) and sex (male) when: (1) his application
for reinstatement to the position of Claims Representative, GS-05,
was denied; (2) when a Personnel Staffing Specialist allegedly spoke
to him in a negative manner and misinformed him regarding his rights to
reinstatement; and (3) when a Personnel Staffing Specialist informed him
that he would have to be considered with outside employment applicants
for a Claims Representative position.
BACKGROUND
The record reveals that during the relevant times, complainant sought
reinstatement to a position as a Claims Representative, GS-05, at the
agency's Center for Human Resources, San Francisco, California ( Region
9). Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December 4, 1996.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, to receive a FAD. Complainant requested a hearing
before an AJ. The AJ issued a decision, without a hearing, finding
no discrimination.
Complainant had worked with the agency as a Claims Representative, GS-05,
from October 1983 to June 1989, in Alhambra, California. Sometime during
the summer of 1996, complainant contacted the agency's Facilitator (White
male), Labor and Employee Relations Branch, Center for Human Resources,
San Francisco, regarding his reinstatement eligibility with the agency.
The Facilitator informed complainant that pursuant to an earlier
settlement agreement with the agency, involving a Merit Systems Protection
Board dispute between the agency and complainant, complainant could not
apply for a position with the agency for five years, and then when he
applied, he could only apply for a vacant position.<1> The Facilitator
also told complainant to contact a Team Leader (White female), Staffing
and Classification Branch, who was responsible for staffing for the San
Francisco Region, for further information on applying for a position.
Complainant contacted the Team Leader about his reinstatement eligibility
sometime in July or August 1996 and then again on or about September 18,
20, and 27, and October 21, 1996. The Team Leader told complainant
that he was not entitled to reinstatement and would need to submit a
completed application in response to an actual vacancy announcement.
The Team Leader also explained a new regulatory requirement mandating
that the agency announce all vacancies open to persons outside the
employing agency. As a result, complainant would be required to compete
with outside applicants for any position for which he applied.
Complainant submitted an application, that was received in the
agency's Center for Human Resources, on or about September 29, 1996.
The application did not list any of the complainant's prior federal
service nor did it identify a specific vacancy announcement for which
he was applying. Accordingly, the agency considered the application
incomplete. The application indicated that complainant was applying for
reinstatement to a Claims Representative Position, and that the lowest
grade he would accept was GS-05.
The agency treated complainant's unsolicited application, like it did
all other unsolicited applications, that it considered incomplete,
and returned it. With the returned application, the agency enclosed a
letter informing the complainant why his application was being returned
and what he needed to do in order to be considered for a position, i.e.,
submit a completed application identifying a specific position and
vacancy announcement for which he was applying, and provide evidence
of reinstatement eligibility, so that the agency could determine his
eligibility and qualifications. In addition, complainant was advised
that for the Claims Representative position, complainant must compete
through a vacancy announcement issued by OPM for the agency, and that
he should call the Office of Personnel Management (OPM) Job Hotline for
information on current vacancies. ROI, Exhibit 10.
At the time that the complainant submitted his incomplete application,
the only Claim Representative position available in the region was a GS-11
position in the agency's office in Walnut Creek, California. The vacancy
announcement for that position was limited to persons eligible for the
Interagency Career Transition Assistance Program. This limitation was
in compliance with recent changes in the OPM hiring procedures, i.e.,
under OPM personnel hiring procedures, the agency was required to select
displaced employees from other agencies when filling vacancies before
selecting reinstatement eligibles.
Complainant indicated that during the course of his contact with the
Facilitator and the Team Leader, they were rude to him, spoke to him in
a negative manner, misinformed him regarding his rights to reinstatement,
and told him that he would have to be considered with outside applicants
when he applied for a vacant position. The agency denied that the
Facilitator and the Team Leader were rude to complainant or spoke to
him in a negative manner.
The AJ found that complainant failed to establish a prima facie case of
race and sex discrimination when his application for reinstatement to
the position of Claims Representative, GS-05, was denied. The AJ found
that complainant failed to establish that he was treated differently than
someone similarly situated not in his protected classes. The AJ pointed
out that although complainant applied for reinstatement, he failed
to identify a specific vacancy for which he wanted to be considered.
Furthermore, the only Claims Representative position available at the
time he applied for reinstatement was a GS-11 position for which the
agency was not seeking outside applicants, and for which the complainant
was not qualified, i.e., he was not eligible for consideration under
the Interagency Career Transition Assistance Program mandated by the
Office of Personnel Management (OPM), and he had not met the minimum
qualifications to be considered for a position at the GS-11 level.
Furthermore, the AJ indicated complainant failed to proffer any evidence
to show that the agency reinstated a similarly situated individual not
in his protected classes under like circumstances.
With respect to the second and third allegations, the AJ concluded
that complainant failed to establish a prima facie case of race or
sex discrimination. The AJ pointed out that complainant failed to
identify any harm he suffered or how he was treated differently than
someone similarly situated not in his protected classes. The AJ found
that the complainant failed to proffer any evidence to show that he was
misinformed regarding his rights to reinstatement, and even assuming
that agency employees spoke to him in a negative manner when explaining
to him his reinstatement rights, complainant proffered no evidence to
show the language used involved racial and/or gender epithets, nor how
the language used harmed him. In the AJ's view, complainant failed to
establish harm because he failed to identify a specific vacancy for
which he was applying and for which the agency should have considered
his application for reinstatement.
In addition, the AJ found that the agency articulated a legitimate
nondiscriminatory reason for its actions which the complainant was unable
to show was pretextual, i.e., there was no Claims Representative position
open at the time he applied for which he qualified or was eligible.
The AJ thus concluded that complainant was unable to show pretext.
The FAD adopted the AJ's decision. Complainant appealed. The agency
did not reply.
In complainant's appeal, he cites to a letter from the Department of
Health and Human Services, dated August 23, 1991, stating that the
sender was sorry for mistakenly telling complainant that individuals
in complainant's training class were newly hired GS-05's, when most
were really newly hired as GS-07's. Complainant thus argues that
the agency improperly started him out as a GS-05. Complainant further
argues that the agency investigator, the AJ, and the agency Director for
Civil Rights and Equal Opportunity failed to respond to the allegation.
Complainant also argues that the investigator did not investigate the
hiring of six people in the San Bernadino, CA, office, including three
people hired after September 1996. Furthermore, complainant argues
that the AJ and the agency overlooked his 6 and 1/2 years as a claims
representative and his B.A. degree, and thus that he was fully qualified
for a GS-05 Claims Representative position. Complainant also submits a
doctor's statement about his blood pressure going up, allegedly due to
his interactions with the Team Leader. Complainant does not argue that
the AJ inappropriately decided the case without a hearing.
ANALYSIS AND FINDINGS
Complainant's Claim of Being Hired at the Improper Grade Level
Complainant's claim of being originally hired at the GS-05 level,
instead of the GS-07 level, has been first brought to the attention of
the Commission on appeal.<2> Complainant's complaint does not appear
to have alleged any discrimination involving the grade level at which
he was originally hired.<3> The matter was not brought before the AJ,
and thus the AJ did not have an opportunity to review the matter. See 29
C.F.R. � 1614.109 (a) (1997) (where the AJ determines that the complainant
is raising or intends to pursue issues like or related to those raised in
the complaint, but which the agency has not had an opportunity to address,
the AJ shall remand any such issue for counseling in accordance with 29
C.F.R. � 1614.105 (1997) (precomplaint counseling)). The purpose of an
appeal is to review the AJ's decision. To accept this claim on appeal
would also be inconsistent with the purposes of 29 C.F.R. � 1614.107(b),
i.e., to have the complainant obtain counseling on a claim before the
filing of a formal complaint, in order that the agency have an opportunity
to address the matter. For the foregoing reasons, even assuming arguendo
that the
allegation is related to his non-selection claim, the Commission
concludes that it would be inappropriate for the Commission to address
the allegation on appeal.<4>
Nevertheless, complainant may file a separate complaint involving his
grade level allegation. Complainant is advised that if he wishes to
pursue, through the EEO process, the grade level allegation raised on
appeal, he shall initiate contact with an EEO counselor within fifteen
days he receives this decision. The Commission advises the agency that
if complainant seeks EEO counseling regarding the new allegation within
the above fifteen-day period, the date complainant made the grade level
allegation on appeal, June 1, 1998, shall be deemed to be the date of
the initial EEO counselor contact, unless he previously contacted an
EEO counselor regarding these matters, in which case the earlier date
would serve as the EEO counselor contact date. Cf. Qatsha v. Department
of Navy, EEOC Request No. 05970201 (January 16, 1998).<5>
Merits of the Case
Reinstatement
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A complainant 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 reason 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). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination in
the nonselection<6> context by showing that: (1) he is a member of a
protected class; (2) he was qualified for the position; (3) he was not
selected for the position; and (4) he was accorded treatment different
from that given to persons otherwise similarly situated who are not
members of his protected group. Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998). Complainant may also set
forth evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco, 438 U.S. at 576.
The 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. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Assuming arguendo that complainant established a prima facie case, we will
proceed to the third step of the McDonnell Douglas analysis. The agency
articulated a legitimate nondiscriminatory reason for its actions, i.e.,
there was no Claims Representative position open at the time he applied
for which he qualified or was eligible. The only Claims Representative
position available at the time complainant applied for reinstatement was a
GS-11 position for which the agency was not seeking outside applicants,
and for which the complainant was not qualified, i.e., he was not
eligible for consideration under the Interagency Career Transition
Assistance Program, and he had not met the minimum qualifications to be
considered for a position at the GS-11 level. In addition, complainant
was advised by the agency, that for a Claims Representative position,
complainant must compete through a vacancy announcement issued by the OPM,
and that he should call the OPM Job Hotline for information on current
vacancies. ROI, Exhibit 10. On appeal, complainant does not dispute,
in any way, the agency's explanation, concerning the role of OPM in
the filling of agency vacancies for Claims Representative positions,
and that the agency informed complainant accordingly.
While complainant argues that the agency hired six people in the
San Bernadino, California, office, including three people after
September 1996, he does not indicate with any more specificity when
the hiring took place. Thus, there is no indication that the hiring
took place during the time his application was at the agency or when he
was discussing his interest in a Claims Representative position with
agency personnel. There is also no indication that the hiring was for
Claims Representative positions. Other than complainant's statement,
the assertion is otherwise unsupported. In any event, as discussed
previously, there is no dispute that OPM was responsible for filling
agency vacancies for Claims Representative positions, and that the agency
informed complainant accordingly.
Misinformation and Rudeness by Agency Personnel
As the AJ did, we combine the second and third allegations. The AJ found
that the complainant failed to proffer any evidence to show that he was
misinformed regarding his rights to reinstatement, and even assuming
that agency employees spoke to him in a negative manner when explaining
to him his reinstatement rights, complainant proffered no evidence
to show the language used involved racial and/or gender epithets,
nor how the language used amounted to harm. On appeal, complainant
has still not proffered any evidence or specific details with respect
to the alleged misinformation, involving his reinstatement rights, the
agency's delineation that he would have to be considered with outside
employment applicants, and the agency's explanation that its Claim
Representative positions were filled through OPM. Complainant also has
not proffered any evidence or specific details with respect to agency
employees speaking negatively to him in terms of disparaging or abusive
language with a nexus to race and/or gender. In the case before us,
even assuming arguendo that the agency employees were rude to him cannot
prove his alleged violation under Title VII, unless there is a nexus
with race and/or gender. In terms of harm from the alleged rudeness,
complainant only presents a doctor's statement about his blood pressure
going up, allegedly due to his interactions with the Team Leader.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
Complainant may contact an EEO counselor within fifteen days of the date
the decision is received, if he wishes to pursue a complaint involving
the grade level allegation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
April 13, 2001
Date
1 The record does not indicate when the five-year period would expire.
Apparently, the expiration date either recently had expired or was
closely approaching.
2 On our review of the record, there is nothing to substantiate that
complainant earlier raised this issue in his complaint or before the AJ.
See, e.g., Complainant's Affidavit (Report of Investigation (ROI),
Exhibit 7); Agency's Letter of Acceptance of Complaint (ROI, Exhibit 1);
Complainant's Reply to the Agency's Motion for Findings of Fact Without
a Hearing; AJ Decision; FAD.
3 The complaint does not appear in the ROI or anywhere else in the
record.
4 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. The Commission's
regulations now allow a complainant to amend a complaint at any time
prior to the conclusion of the investigation to include issues or
claims like or related to those raised in the complaint. Additionally,
after requesting a hearing, complainant may file a motion with the AJ to
amend a complaint to include issues or claims like or related to those
raised in the complaint. 29 C.F.R. � 1614.106(d)(1999). Even under the
Commission's revised regulations, complainant's grade level claim would
be improper, since it was first raised on appeal. For the purposes of
this case, we have applied the regulations in effect at the time the AJ
issued her decision.
5 We recognize that complainant's allegation may have timeliness
problems.
6 A reinstatement decision is akin to a selection decision, insofar
as an individual is placed in a position. For purposes of this case,
we treat the terms interchangeably.