0120071843
04-15-2009
Kirsy Abreu, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Kirsy Abreu,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120071843
Hearing No. 520200600018X
Agency No. BOS050324SSA
DECISION
On February 27, 2007, complainant filed an appeal from the agency's
February 12, 2007 final order concerning her 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
Service Representative, GS-998-8, in the agency's Lawrence, Massachusetts
office.
In September 2004, complainant submitted her resume to the District
Manager for any Claims Representative positions available in the future.
On or about December 1, 2004, the agency posted Vacancy Announcement
Number SM200834 for two positions of Social Insurance Specialist (also
referred to as Claims Representative). Applicants were required to
apply through the USAJOBS website.
In January 2005, the District Manager contacted approximately thirty-five
candidates from the resumes that he kept in his office and pre-interviewed
them for the Claims Representative positions that were available in
the Lawrence District Office. The District Manager then encouraged the
candidates he believed to be best-qualified to submit applications through
the USAJOBS website. The District Manager did not interview complainant,
nor refer her to the USAJOBS website.1
On February 1, 2005, four applicants who applied through the USAJOBS
website were selected by the agency's Human Resources Office in Boston,
and were listed on the Certificate of Eligible Candidates for the Claims
Representative position. The District Manager ultimately selected
two of complainant's female co-workers (CW1 and CW2) for the position.
The District Manager made his final decision based on the results of
"meet and deal" interviews, a review of their qualifications, and a
final reference check.
On June 21, 2005, complainant filed a formal EEO complaint alleging
discrimination on the bases of sex (female) and reprisal (prior protected
EEO activity)2 when she was not selected for the position of Claims
Representative.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over the complainant's objections, the AJ
assigned to the case granted the agency's August 10, 2006 motion for a
decision without a hearing and issued a decision without a hearing on
December 20, 2006. The AJ found that, assuming all facts in favor of
complainant, complainant failed to establish that discrimination played
a role in the agency's decision not to select her for the position.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
ANALYSIS AND FINDINGS
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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, complainant was given notice of the agency's motion
to issue a decision without a hearing, she was given an opportunity
to respond to the motion, she was given a comprehensive statement of
undisputed facts, and she had the opportunity to engage in discovery.3 On
appeal complainant asserts that a hearing is necessary because there are
credibility issues that can only be determined at a hearing. However,
we find that, even if we assume all facts in favor of complainant,
a reasonable fact finder could not find in complainant's favor, as
explained below. Therefore, no genuine issues of material fact exist.
Here, complainant is alleging that she was not selected for the Claims
Representative position because of her sex and in reprisal for prior
protected EEO activity. To prevail in a disparate treatment age 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). She must generally establish a prima facie case by
demonstrating that 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). The prima facie
inquiry may be dispensed with in this case, however, since 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). 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); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We will assume, without so finding, that complainant has established
her prima facie cases of sex and reprisal discrimination.4 We find
that the agency articulated legitimate, non-discriminatory reasons
for not selecting complainant for the position. The District Manager
stated that he had concerns about complainant's performance, and about
complainant's excessive leave usage that resulted in a back-log of work
that her co-workers had to carry. This explanation is sufficient to
meet the agency's burden of production.
Complainant must now establish, by a preponderance of the evidence, that
the agency's articulated legitimate, non-discriminatory reasons for not
selecting complainant for the position are pretext for discrimination.
The Commission notes that in a non-selection case, pretext may be
demonstrated in a number of ways, including a showing that complainant's
qualifications are observably superior to those of the selectee. See
Williams v. Department of Education, EEOC Request No. 05970561 (August
6, 1998). As proof of pretext, complainant asserts that the District
Manager took into consideration complainant's excessive leave used to
take care of her child when he determined whether or not complainant was
qualified for the position. We find that this assertion, without more,
is insufficient to establish that the District Manager was motivated by
discriminatory or retaliatory animus.
We note that even had complainant been referred to the USAJOBS website to
apply for the position, the preponderant evidence of record supports a
finding that complainant would not have been selected for the position.
Specifically, there were other applicants who were better-qualified
for the position. CW1 was selected because she was a college graduate
with approximately a 3.6 GPA, and her prior managers complimented
her intellectual skills, job performance and potential to excel as
a Claims Representative. CW2 was selected because she had graduated
college with honors and had demonstrated excellent "Meet and Deal" skills
while providing clerical support and performing receptionist duties. We
recognize that employers generally have broad discretion to set policies
and to carry out personnel decisions, and should not be second guessed
by the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order, because a preponderance of the evidence does not establish
that discrimination existed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 15, 2009
Date
1 We note that the vacancy announcement was available to the public
through the USAJOBS website.
2 We note that in her original complaint, complainant also alleged
discrimination on the basis of her parental status. This basis
was dismissed, as it is not subject to the regulations found at 29
C.F.R. Part 1614, and does not fall under the Commission's jurisdiction.
Complainant does not contest this dismissal on appeal.
3 We note that complainant failed to serve her discovery requests
within the time-frame set out in the AJ's Acknowledgement and Order.
Subsequently, complainant filed a Motion to Compel Discovery. The AJ
denied the motion, holding that complainant failed to show good cause for
the delay. While complainant does not directly address this matter in her
appeal brief, we nonetheless note that the AJ's denial of complainant's
Motion was proper.
4 The record reflects that complainant's prior EEO activity was
comprised of an allegation of discrimination against a different manager
approximately one year prior to the events at issue.
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0120071843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071843