0120111892
06-28-2013
Eric M. Gima, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Eric M. Gima,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111892
Hearing Nos. 410-2010-00078X, 410-2010-00079X
Agency Nos. ATL080322SSA, ATL-08-0543
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's final order1 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. For the following reasons, the Commission AFFIRMS the decision which found that Complainant failed to show that he was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative, GS-11 at the Agency's facility in Atlanta, Georgia. He applied for and was found to be qualified for a District Manager (DM) position and an Operations Supervisor (OS) position but he was not selected for either position. The person selected for the DM position was a different race than Complainant, and the selectee for the OS position was a different race and sex than Complainant. The selecting official maintained that she selected the best candidate for each position. She considered among other things the information contained in their applications as well as her experience working with them. The selecting official chose the selectee for the DM position based on his experience as a manager. With respect to the OS position, the selectee was chosen based on her extensive and recent experience with Title XVI.
Believing that he was a better qualified candidate for both positions, on June 19, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Asian), when he was not selected as a District Manager in the Decatur District Office and when based on race, sex (male), and reprisal for prior protected EEO activity he was not selected for the position of Operations Supervisor in the Atlanta Downtown District Office.2
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Prior to the hearing, the Agency filed a Motion for a Decision without a hearing. The AJ granted the Agency's motion finding that there were no material facts at issue. The AJ determined that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the DM position because the selectee was better qualified than Complainant. Specifically, the selectee's application showed that he had worked as a GS-12 Operations Supervisor since May 2005, in an extended temporary promotion, which gave him approximately two years worth of experience in this position. During this time period he supervised twenty-three employees, conducted office unit meetings, provided training for claims representatives and service representatives, and conducted performance reviews. The selectee had also served in a detail as a Title II Technical Expert from July 2004 to November 2004.
In comparison, Complainant's application indicated that he had held a GS-12 Operations Supervisor position from February 2006 to June 2007, after which he was returned to a GS-11 Claims Representative position. Complainant supervised twelve people, monitored workloads, conducted meetings and training sessions, as well as conducted performance reviews. Additionally, Complainant had worked as a GS-12 Assistant Module Manager for seven months as well as a GS-12 Program Expert for three months. The selecting official believed that the selectee's overall knowledge was more relevant to the position and was superior to Complainant's. She indicated that her assessment originated from her review of both applicant's qualifications as well as past experiences working with both. The selecting official indicated that Complainant's race was not a factor. Moreover, the concurring official for the DM position stated that he was unaware of the race of either Complainant or the selectee.
With respect to the Operations Supervisor selection, the selecting official again maintained that she selected the most qualified person for the position. The application of the selectee demonstrated that she had worked as a GS-11 Claims Representative since 1999. She had processed and adjudicated Title II and Title XVI claims and had gained knowledge and experience working with Title II and Title XVI post-entitlement actions. She also worked in the Title XVI unit, mentored Title XVI trainees, and coordinated the work activities of the Service Representatives. The selectee had also participated in the Opportunity Excellence Program from October 2003 to October 2004, where she mentored and monitored workloads and assisted the District Manager, Office Supervisor, and Technical Expert in the day-to-day operations of the office. Additionally, the selectee worked as a Technical Expert during which time she worked with the District Manager and mentored Title XVI Claims Representatives trainees. It was noted that Complainant submitted the same application for this position as he did for the DM position. Again, he listed the temporary OS position he held from February 2006 to June 2007, as his most recent experience. His application indicated that he participated in the Atlanta Management Development program for ten months. It also showed that Complainant had worked as a GS-11 Title II Claims Authorizer from July 2001 to April 2005, and worked as a Title XVI Claims Representative from January 1997 to July 2000. The selecting official indicated that she was looking for an individual who had significant Title XVI knowledge and because of the selectee's extensive knowledge she believed that she was the best candidate for the position.
The AJ found that Complainant failed to show that the Agency's articulated reason for the selections were pretext for discrimination. The AJ therefore determined that Complainant failed to demonstrate that he had been subjected to discrimination.
CONTENTIONS ON APPEAL
Complainant contends that other than stating that the selectee was better qualified for the District Manager position the selecting official failed to provide specific facts in support of her conclusion. Complainant maintains that it was not until Agency lawyers became involved in the case that the selecting official indicated that the selection was also based on her history of working with Complainant and the selectee. Complainant contends that at the time of the selection he had a much broader base and range of supervisory and managerial experience, analytical knowledge, and skills than the selectee as was reflected in his application for the position. Complainant makes the same contentions regarding the Operations Supervisor position.
Further, Complainant maintains that contrary to the selecting official's statement, she was aware of his prior EEO activity. Complainant contends that the selecting official knew that a coworker had accused him of sexually harassing her. He contends that that was the reason for his being terminated from the OS position. The selecting official told him to "leave it alone, let it die." Complainant also maintains that she told him that he would never get another promotion in the Georgia Area or the Atlanta Region and indicated that his career was virtually over. Complainant maintains that since that date, the selecting official has continually harassed and retaliated against him to the point of questioning him about leaving work 30 seconds early and she constantly harassed him for more and more medical evidence in connection with his subsequent seven month leave to deal with the emotional issues he experienced as a result of her conduct.
Finally, Complainant requests that upon the remand of his non-selection allegations, his dismissed claims should also be reinstated because it should have been tolled because he was incapacitated during the time.
In response, the Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the District Manager position because the selectee was more qualified for the position than Complainant. The Agency also explained that Complainant was not selected for the Operations Supervisor position because the selectee had more Title XVI experience than Complainant. The Agency indicated that the selections were also based on the selecting official's working relationship with the selectees. The Agency maintained that Complainant failed to show that the articulated reasons were pretext for discrimination. The Agency also argues that Complainant failed to demonstrate that his qualifications were "clearly superior" to those of the selectees. Finally, the Agency argues that Complainant's dismissed claims were correctly dismissed as untimely because his EEO Counselor contact occurred well after the expiration of the 45 day time limitation period.
ANALYSIS AND FINDINGS
The Commission finds that summary judgment was appropriate in this matter as there are no material facts at issue in this case. Further, we find that after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the finding of no discrimination with regard to the nonselections. The Commission finds that assuming arguendo that Complainant established a prima facie case as to all bases the record shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the selectees had the skill set required for the position and had successfully worked with the selecting official in the past.
We find the Agency has clearly articulated the reasons why Complainant was not selected for either position. The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, Complainant has failed to make this showing. Neither he nor the record provide any persuasive evidence that Complainant was so better qualified for the position than the selectees that discrimination could be inferred from his nonselection. The record also does not establish that the selecting official considered Complainant's protected bases with regard to the nonselection.
With respect to the dismissed claims, we find that they were properly dismissed by the Agency as the record does not indicate that Complainant was so incapacitated by a medical condition that he could not have contacted an EEO Counselor prior to March 6, 2008, with respect to the termination of his detail on May 24, 2007 or his being accused of sexual harassment on June 1, 2007. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). According to Complainant, he went out on sick and annul leave due to "stress, humiliation and the defamation of character," caused by the allegations of sexual harassment which were made against him. Accordingly, we find that these discrete acts of discrimination were properly dismissed.
Accordingly, we find that a preponderance of the record evidence does not establish that discrimination occurred. The finding of no discrimination is AFFIRMED.
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
__6/28/13________________
Date
1 The Agency failed to timely implement the Administrative Judge's decision; therefore, the Administrative Judge's decision became the Agency's final order.
2 In the Agency's letter accepting the above-described claims for investigation, the Agency dismissed Complainant's claims that he was subjected to harassment and a hostile work environment based on race, age (39), and reprisal when (1) his detail ended on May 24, 2007, and (2) on or around June 1, 2007, he was accused of sexual harassment. These claims were dismissed due to untimely counselor contact. The record indicates that he contacted an EEO counselor on March 6, 2008. On January 20, 2010, Complainant filed a motion to reinstate these claims due to equitable tolling and incapacitation. The Agency argued against Complainant's request stating that he did not provide sufficient evidence of incapacitation. The Agency also rejected Complainant's argument that because it did not investigate the sexual harassment allegations against Complainant that constituted a continuing violation. The AJ did not explicitly address Complainant's motion.
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0120111892
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111892