0120091203
04-14-2009
Pedro Miranda, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Pedro Miranda,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091203
Agency No. NY-07-2224
Hearing No. 520-2008-00326X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 23, 2008 final order concerning his equal employment opportunity (EEO) complaint claiming 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.
Complainant alleged that the agency discriminated against him on the bases of sex (male) and national origin (Hispanic) when:
he was not considered for promotion to the following positions because he did not make the best qualified list: (1) Claims Representative (Bilingual), GS-105-5/7, advertised under Vacancy Announcement No. VAN NY-BC-7-025; and (2) Claims Representative, GS-105-7, advertised under Vacancy Announcement No. VAN NY-MR-7-024.
Following the investigation into his complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision by summary judgment in favor of the agency. The agency fully implemented the AJ's decision in its final order.
The AJ found that, based on the evidence of record, complainant had not established a prima facie case of discrimination based on sex and national origin. The AJ found that nonetheless the agency articulated legitimate, non-discriminatory reasons for its actions. Regarding claim (1), the AJ noted that complainant was one of the 195 candidates that applied for the position of Claims Representative (Bilingual), GS-105-5/7, advertised under Vacancy Announcement No. NY-BC-7-025. The AJ further noted that the record reflects that based on his application, complainant scored high enough to be placed on the Certificate of Eligible Candidates for the GS-5 vacancies. The AJ noted, however, that the selecting official made a
determination not to fill any of the vacancies for Vacancy Announcement No. NY-BC-7-025 because "[t]he work experience, educational background and potential for success of the candidates of the FCIP [Federal Career Intern Program] list, that is NY-MR-7-024, appeared to be superior to those of the bi-lingual register candidates."
Regarding claim (2), the AJ noted that the record reflects that complainant did not apply for the "FCIP" announcement (Vacancy Announcement No. NY-MR-7-024). Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
Complainant asserted that by not considering candidates from the Vacancy Announcement NY-BC-7-025 (claim (1)), the agency made an affirmative attempt to discriminate against Hispanics because bi-lingual candidates tend to be Hispanic. However, the AJ found complainant's argument falls short in light of the fact that five of the twenty-six selectees from the FCIP pool were Hispanic. The AJ also found that the record reflects that a bi-lingual Hispanic who had applied to both announcements was selected. Moreover, the AJ determined that complainant could have applied for an FCIP position (claim (2)) but did not, and therefore, he removed himself from any possible consideration under that announcement.
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
On appeal, complainant reiterates his contention made before the AJ that the decision to not make a selection from the vacancy announcement for bilingual applicants resulted in discrimination against its predominantly Hispanic applicant pool, and favored the FCIP pool, which he asserts was predominantly female and non-Hispanic. However, as the AJ determined, this contention is not supported by the evidence of record as of the eventual 26 selectees under Vacancy Announcement No. NY-MR-7-024 ("FCIP" positions), five were Hispanic and six were male, including one Hispanic male. Moreover, complainant did not submit an application in response to Vacancy Announcement No. NY-MR-7-024, and so could not have been considered for one of the positions. Finally, complainant asserts that the word "intern" in the FCIP announcement was designed to attract "college students and other young people" so that Hispanic employees were less likely to apply for this announcement and more likely to apply for the bilingual position announcement. However, other than his mere speculation, complainant offered no evidence in support of this contention and, as already noted, the evidence indicates that a significant number of Hispanic and male applicants were among the selectees.
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 unlawful discrimination occurred.
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 14, 2009
__________________
Date
2
0120091203
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091203