0120091978
07-02-2010
George D. Riedmiller, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
George D. Riedmiller,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091978
Hearing No. 521-2007-00279X
Agency No. OCO-07-0178
DECISION
On March 24, 2009, Complainant filed an appeal from the Agency's February
23, 2009, final order 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 order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that Complainant was not subjected to
unlawful discrimination when the Agency failed to select him for the
position of Security Specialist, GS-301-9/11.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Customer Service Representative at the Agency's facility
in Wilkes-Barre, Pennsylvania. As a Customer Service Representative,
Complainant answered telephone inquiries regarding Agency programs,
analyzed computer data records, and scheduled appointments for customers
at Agency field offices.
The record reveals that on August 21, 2006, the Agency posted a vacancy
announcement for the position of Security Specialist, GS-301-9/11.
According to the position description, a Security Specialist is
responsible for ensuring effective administration and evaluation of the
security/integrity program in the Wilkes-Barre Data Operations Center
(WBDOC) and the Folder Servicing Operation (FSO).1 Exhibit 12b, p. 4.
Security Specialists also take measures to ensure that manual and system
procedures are secure from potential fraudulent activities by employees
and beneficiaries. The position required knowledge of Agency systems
and procedures used in the facility for gathering, processing, and
storing data in order to comment on security implications and develop
local guidelines to protect the integrity of gathering, processing,
and storing data.
Complainant applied for the Security Specialist position and made the
Best Qualified List at the GS-9 level along with seven other applicants.
Four applicants made the Best Qualified List at the GS-11 level, including
the selectee. The Agency selected a 48 year old female GS-9 Security
Assistant for the position.
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male), age (54 years old), and in
reprisal for prior protected EEO activity when it failed to select him
for the position of Security Specialist, GS-301-9/11.
In an investigative affidavit, the Selecting Official (SO) stated that
the managers of each applicant provided recommendations for the position.
She stated that only candidates who received a "Highly Recommended"
rating from their manager were considered for the position. She further
stated that the selectee was chosen for the position based upon the
recommendation of her manager.
The Branch Chief stated that after the Best Qualified list was issued, he
assessed the applicants for the position. He stated that four applicants
received "Highly Recommended" ratings from their managers, including
the selectee. He stated that Complainant received a "Recommended'
rating from his manager. The Branch Chief further stated that he was
"very familiar" with the selectee's work ethic, knowledge, and character
and recommended the selectee to the Director. Exhibit 8, p. 2.
Additionally, the Branch Chief stated that he "Highly Recommended"
the selectee because she already had most of the job-related skills of
a Security Specialist in both physical and systems security through her
position of Security Assistant; she had computer skills and knowledge of
all the applications that are used in the office, including TOPSECRET,
ALPHA/DEQY/NUMI CIRPs, Excel, and Word; she had recently attended training
on the new Lenel system; and, she could be trusted with confidential
information.
Complainant's supervisor/manager stated that she rated Complainant
"Recommended" for the position. She stated that she did not rate him as
"Highly Recommend," because he failed to sign off the Agency's mainframe
system during breaks, lunches, and at the end of the day.
The supervisor also provided a supplemental affidavit statement that
was attached to the Agency's motion for a decision without a hearing.
Exhibit G. In that affidavit, the supervisor further stated that
complainant had to log into three separate systems each day. She stated
that Complainant's mainframe computer system included the Customer Help
and Information Program (CHIP)2 system, which was accessed from personal
computers and the Agency's network; the Aspect telephone system, which
handled customer calls; and, the Agency mainframe computer system,
which is necessary to research queries and to enter data. She stated
that all three systems require separate personal identification numbers
(PINS); therefore, it is important to prevent a breach of security in
any access procedures involving these systems.
The supervisor further stated that when Complainant leaves his work
station to go on breaks, go to lunch, or go home, he must log off of
his personal computer and the Agency network. She stated that failure
to log off properly allows anyone to access CHIP from his computer and
access individuals' personal information. The supervisor stated that
when Complainant arrives for work, he must log into the Aspect telephone
system using his ASPECT PIN number and password, his personal computer,
and the Agency network.
She also stated that when Customer Service Representatives leave their
workstations, they must hit the "idle" button before finishing their
last call so that they do not receive another call. She stated that
the representative must then immediately log off the Aspect system for
security reasons and to avoid accumulating work time. Additionally,
she stated that if a representative needs to leave his desk to seek
assistance on a current customer call, he can put the telephone in
"wrap" or hold mode. However, she stated that the "wrap" mode should
not used inappropriately because it keeps the representative's telephone
line busy.
The supervisor stated that Complainant inappropriately left his
telephone in wrap mode through official breaks, lunch, and at the
end of the day. She stated that this resulted in mainframe access to
Complainant's computer, which contained information about customers,
including social security numbers, addresses, income, and family data.
She stated that leaving one's mainframe computer in an accessible mode
could allow someone to change social security data. She stated that
she spoke to Complainant about his improper sign-off of one or more of
the mainframe systems on March 18, March 26, April 1, April 3, April 26,
June 28, August 1, and August 10, 2006.
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 AJ. Complainant timely requested a
hearing. On March 20, 2008, the Agency submitted its Modified Motion
for Judgment without a Hearing. On March 27, 2008, Complainant responded
to the Agency's Motion in opposition. In a decision dated February 12,
2009, the AJ issued a decision without a hearing in which he found that
Complainant was not subjected to unlawful discrimination. The Agency
subsequently issued a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision
without a hearing in favor of the Agency. Complainant contends that
although his supervisor spoke to him about failing to properly sign off
his computer, his actions did not create a security issue. Complainant
further contends that he was more qualified for the position than the
selectee because he had a Law Enforcement and Corrections Degree and
attended police academies, whereas the selectee did not graduate from
a four-year college. He further argues that the selectee had limited
security experience, whereas he had over 20 years of experience as a
private detective. Additionally, Complainant contends that the Agency
failed to provide any official documentation that proves that he did not
properly sign off the computer system. Finally, Complainant maintains
that the Agency improperly submitted an affidavit from his supervisor for
the record that was beyond the scope of the independent investigator's
investigation. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that Complainant maintains that the
Agency improperly submitted a supplemental affidavit from his supervisor
for the record that was beyond the scope of the independent investigator's
investigation. However, contrary to Complainant's assertions, the
investigative process does not necessarily end after a complainant has
requested a hearing. In this case, the Agency provided a copy of the
supervisor's supplemental affidavit to Complainant with its motion for
a decision with a hearing. The supplemental affidavit expounded in
greater detail on statements made by the supervisor in her original
investigative affidavit. Complainant responded to the affidavit in
his opposition to the Agency's motion for a decision without a hearing.
Thus, Complainant was not deprived of an opportunity to respond to the
supplemental affidavit. Consequently, we do not find that the AJ abused
his discretion by considering the supplemental affidavit as evidence in
this case.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an Agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and Agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
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.
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. If a case can only be resolved by weighing conflicting evidence,
issuing a decision without holding a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). We find that the AJ properly issued a decision without a hearing
because Complainant failed to show that a genuine issue of material fact
or credibility existed.
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). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that
the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we assume that complainant established a prima facie
case of unlawful discrimination. Nonetheless, we find that the Agency
provided legitimate, non-discriminatory reasons for its actions, as
detailed above.
Complainant contends that although his supervisor spoke to him about
failing to properly sign off his computer, his actions did not create
a security issue. Complainant also acknowledged that the supervisor
did speak to him on an "occasion or two regarding his inadvertently
forgetting to log off the Aspect phone system during break, lunch, or
the end of his shift." Complainant's Brief, p. 2. While Complainant
contends that his conduct did not pose a security risk because no external
calls came through the system, the supervisor's explanation went beyond
Complainant's narrow focus on incoming calls. The supervisor stated
that Complainant's actions left his computer in an accessible mode that
could have been exploited by someone with access to his work station.
The supervisor explained that Complainant's actions meant that anyone
could have accessed sensitive information stored on his computer,
including social security numbers, addresses, income, and family data.
Complainant failed to refute these specific Agency explanations.
Complainant further contends that the Agency should have produced Aspect
telephone data that reflected his wrap/idle activity. We note, however,
that Complainant acknowledged that he "inadvertently forg[ot] to log
off the Aspect phone during break, lunch, or the end of his shift"
on one or two occasions. Moreover, the record contains several email
correspondences in 2006 from the supervisor to management in which the
supervisor reported that Complainant left his computer in wrap mode when
he went to lunch or break and left the building.
Complainant further contends that he was more qualified for the position
than the selectee because he had a Law Enforcement and Corrections Degree
and attended police academies, whereas the selectee did not graduate
from a four-year college. He further argues that the selectee had
limited security experience, whereas he had over 20 years of experience
as a private detective. Additionally, Complainant contends that the
Agency failed to provide any documentation that proves that he did
not properly sign off the computer system.3 While Complainant had
impressive experience and education in the law enforcement field, the
selectee had impressive experience in computer and systems security,
including her experience as a Security Assistant. Complainant has not
provided any persuasive evidence that his qualifications were plainly
superior to those of the selectee. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (Nov. 2, 1995).
Further, the Agency clearly placed great emphasis on the recommendations
of the applicants' managers. Complainant's manager gave Complainant a
"Recommended" rating because Complainant improperly left his computer
in an accessible mode that could have compromised Agency security.
Complainant acknowledges that he forgot to properly log off the
computer system on at least one or two occasions. In light of
the fact that this position involved ensuring the integrity of the
Agency's computer systems and highly sensitive data, we do not find it
unreasonable that Complainant's manager would not highly recommend him
for a Security Specialist position. We find that Complainant failed
to provide any evidence to the AJ from which it could be concluded
that the Agency's non-discriminatory explanations were a pretext for
unlawful discrimination. Thus, we find that the AJ properly found no
discrimination.
CONCLUSION
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 Agency's final
order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate, and a preponderance of the
record evidence does not establish that discrimination occurred.
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
____7/2/10______________
Date
1 We note that the GS-9 Security Specialist position description states
that the duties of the position at the GS-9 level are "characteristic"
of the GS-11 full performance position description duties and will be
gradually broadened so that the incumbent is eventually performing all
the duties of the full performance level. Exhibit 12b, p. 2.
2 The supervisor stated that the CHIP program interfaces with the Agency's
many databases and contains extremely sensitive and detailed information
about individuals.
3 Given the fact that Complainant acknowledged that he did not properly
sign off his computer or log off the Aspect phone system on occasion,
we find it of little significance that the agency did not provide
documentation to that effect.
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0120091978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091978