0120102135
09-14-2010
Adrienne Bloodworth, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Adrienne Bloodworth,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102135
Hearing No. 410-2009-00296X
Agency No. ATL-08-0647-SSA
DECISION
Complainant filed an appeal from the Agency's May 12, 2010 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 a Contact Representative at the Agency's Atlanta North Office of Adjudication and Review facility in Atlanta, Georgia. On September 25, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and age (46) when:
1. Complainant learned on June 17, 2008, that she was not selected for the position of Secretary (OA) GS-318-08, which was posted under announcement number SG-179033-08-LB;
2. Complainant learned on June 30, 2008, that she would was not selected for the position of Secretary (OA) GS-318-08, which was posted under announcement number ATL-119-2008;
3. Complainant learned on September 9, 2008, that she was not selected for the position of Paralegal Specialist, GS-0950-09, which was posted under announcement number GS-179707-08-CV.
4. On April 2, 2007, Complainant learned that she was not selected to the position of Administrative Assistant, which was posted under vacancy announcement number ODAR-4-2007;
5. On April 2, 2007, Complainant learned that she was not selected for the position of Administrative Assistant, which was posted under vacancy announcement number ODAR-9-2007;
6. Complainant learned on April 2, 2007, that she was not selected to the position of Management Analyst, which was posted under vacancy announcement number SSA-26-2007.
By letter dated December 5, 2008, the Agency dismissed claims (4), (5) and (6) pursuant to 29 C.F.R. �1614.107(a)(2), for untimely EEO Counselor contact.1 The Agency found that Complainant initiated the EEO process on June 23, 2008, however, Complainant reasonably suspected discrimination as early as April 2, 2007 with respect to these three claims. Accordingly, the Agency found that these claims were presented for EEO counseling beyond the 45-day time limit. Agency's December 5, 2008 letter to Complainant (Report of Investigation, Exhibit D) at 3.
The Agency investigated the remaining claims (1), (2), and (3). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 10, 2010 motion for a decision without a hearing and issued a decision without a hearing on April 5, 2010.
With respect to claim (1), the AJ found that the Agency explained that the announcement failed to garner enough successful applicants from which the selecting official was to make a selection, and accordingly, the Agency cancelled the announcement, as it is allowed by policy to do. The AJ did not find that Complainant established evidence to the contrary. AJ Decision at 11.
In his decision, the AJ found none of the facts pertaining to the three selection events of which Complainant complained in her complaint, remained in dispute. Specifically, with respect to claim (2), the AJ found that Complainant did not dispute that she failed to submit a resume with her application. AJ's April 5, 2010 Decision, (AJ Decision) at 12. The AJ found that Complainant's name was not included on the certificate of eligible candidates based on her failure to submit the necessary resume, and that as a matter of law, Complainant would not have been selected because the selection was made on the basis of Veterans' Preference. Id.
Regarding claim (3), the AJ observed that the selected candidates were both Black, female applicants, and older than Complainant. Thus, the selectees were members of Complainant's protected classes with respect to age, race and sex. Accordingly, the AJ found that Complainant failed to establish a prima facie case of discrimination on any of the bases she alleged. AJ Decision at 12.
After considering the arguments Complainant raised in opposition to the Agency's motion for a decision without a hearing, (AJ Decision at 12, 13), the AJ concluded that Complainant was not subjected to discrimination on the bases of age, race or sex. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant asks that her qualifications be compared to those of the selected candidates, which she believes would yield proof of discrimination. Complainant's April 26, 2010 Appeal Request at 3. Complainant further states that providing veterans a preference in the hiring process discriminates against applicants who do not have military service experience. Id. at 4.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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).
In the instant case, we find the AJ properly issued his decision without a hearing. We find the material facts are not in dispute and that the AJ properly drew every credible inference in Complainant's favor before rendering his decision without a hearing.
We find no dispute that the Agency made no selection from the announcement identified in claim (1). We further find, as did the AJ, that even if Complainant had submitted her resume for consideration with her application for the position described in claim (2), that Complainant's rating would still not have placed her on the certificate of eligible candidates for that position. Rather, we find no dispute that the top three rated candidates were awarded an advantage because of their military service, which experience Complainant did not possess. AJ Decision at 12. With respect to claim (3), we find Complainant does not dispute that the two applicants selected for the Paralegal position described in the identified announcement were older than she was at the time of the selection and that both candidates were in the same racial group and the same sex as Complainant.
CONCLUSION
We AFFIRM the Agency's final decision finding no discrimination.
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
September 14, 2010
__________________
Date
1 In his decision, the EEOC Administrative Judge (AJ) specifies that Complainant's complaint focuses on the three selections described in the claims accepted for investigation. AJ Decision at 12. We find nothing in the record shows that Complainant appealed the Agency's dismissal of claims (4), (5), and (6) during the processing of her complaint before the AJ.
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0120102135
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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