01a54645
10-07-2005
Richard Grimes, Jr., Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Richard Grimes, Jr. v. Social Security Administration
01A54645
October 7, 2005
.
Richard Grimes, Jr.,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A54645
Agency No. 04-0134-SSA
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. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Information Technology Specialist, GS-12 at the Office
of Disability Programs, located in Maryland. Complainant sought EEO
counseling and subsequently filed a formal complaint on January 30,
2004, alleging that he was discriminated against on the bases of race
(Black) and sex (male) when he was not selected for promotion to the
position of Information Technology Specialist, GS-13, that was posted
under vacancy announcement number H-2139.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that management had articulated
legitimate, non-discriminatory reasons for complainant's non-selection
that complainant failed to rebut; namely, that the selectee was more
qualified than complainant. Specifically, the agency found that the
critical criteria for the position were experience working as a Top Secret
Systems Administrator providing advice and guidance to managers on a broad
range of security issues, and providing direction and interpretation
to staff on operational and security matters for existing systems.
The agency also found that the selectee has four years of security
experience as a Top Secret Systems Administrator, and was given a score
of 125 on his SSA-45,<1> while complainant has two years of experience
as a Security Officer, and was given a score of 115 on his SSA-45.
On appeal, complainant raised the same arguments raised in her complaint.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission.
29 C.F.R. � 1614.405(a).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green. 411 U.S. 792
(1973). For complainant to prevail, he 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its action. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Upon review, the Commission finds that the agency articulated a
legitimate, nondiscriminatory reason for its action in making the
selection. The selectee had more experience as a Top Secret Systems
Administrator, which was an essential criteria for the position. Where,
as here, 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 to the
ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency's actions were motivated by discrimination.
See United States Postal Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983); Hernandez v. Department of Transportation, EEOC Request
No. 5900159 (June 28, 1990).
In nonselection cases, pretext may be found where the complainant's
qualifications are plainly superior to the qualifications of the selectee.
See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). The Commission also notes that an employer has the discretion
to choose among equally qualified candidates provided that the employment
decision is not based upon unlawful criteria. The Commission is not
persuaded that complainant's qualifications were so plainly superior
to the selectee's qualifications and experience as to warrant a finding
of pretext. Complainant has not shown that he has more experience as a
Top Secret Systems Administrator than the selectee. We find therefore
that complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reason. Moreover, complainant has failed to show,
by a preponderance of the evidence, that he was discriminated against
because of his race or sex.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 7, 2005
Date
1In accordance with the Social Security
Administration/American Federation of Government Employees Merit Promotion
Plan, candidates applied for the position by submitting SSA-45's. A joint
panel of union and management employees ranked and scored the SSA-45
based on the ranking criteria provided in the vacancy announcement.