01a52463
11-07-2005
Angelo Braddock, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Angelo Braddock v. Social Security Administration
01A52463
November 7, 2005
.
Angelo Braddock,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A52463
Agency No. 02-0274-SSA
Hearing No. 100-2004-00304X
DECISION
On April 30, 2003, complainant, a Budget Analyst, GS-12, filed a formal
EEO complaint in which he claimed that the agency discriminated against
him on the bases of his race (African-American), sex (male), color
(black), age (over 40) and in reprisal for his previous EEO activity
under Title VII and the Age Discrimination in Employment Act when he was
not selected for the following positions: Supervisory Budget Analyst,
GS-560-13; Senior Executive Analyst, GS-301-13, Vacancy Announcement
No. Y-480; Senior Executive Analyst, GS-301-13, Vacancy Announcement
No. Y-448; Executive Analyst, GS-301-13; EEO Specialist, GS-260-12;
and Lead Management Specialist, GS-343-13.
The agency investigated the complaint and thereafter referred the matter
to an Administrative Judge (AJ), pursuant to complainant's request for
a hearing. Complainant subsequently withdrew his claims with regard
to the second Senior Executive Analyst position listed above, the
EEO Specialist position, and the Lead Management Specialist position.
Without holding a hearing, the AJ issued a decision ordering Summary
Judgment in favor of the agency and finding no discrimination under any
of the alleged bases. With regard to the Supervisory Budget Analyst and
Senior Executive Analyst positions, the AJ observed that both selectees
were considered far better qualified than complainant based on their
background, experience and interviews. The AJ noted that complainant
had established a reputation in some of the regions that he serviced as
lacking the requisite knowledge, failing to support and rudeness, and
lacking the requisite knowledge, skills and abilities for the positions in
question, especially with regard to leadership and human relation skills.
With regard to the Executive Analyst position, the AJ noted that the
agency did not make a selection for this position because the vacancy
announcement was canceled.
On January 10, 2005, the agency issued a final order adopting the AJ's
decision.
On appeal, complainant contends that he was the only candidate who had
the required background and experience for the Supervisory Budget Analyst
position. Complainant states that he had 23 years of budget experience
and that the selectee had no budget experience. Complainant argues
that both he and the selectee recently completed executive leadership
training and that neither of them had any certain supervisory experience
while employed with the agency. According to complainant, the selected
official was untruthful when she stated that complainant had problems
completing assignments for her. Complainant states that the selecting
official was never involved in assigning work to him. Complainant further
argues that he always completed his assignments on time. Complainant also
denies that three Regional management officers requested his removal from
their regions. Complainant states that he never had occasion to have any
discussions or conflicts with any Regional officers. Complainant claims
that the selecting official developed retaliatory animus toward him
when he challenged her claim that improvement had been made in advancing
Black males to professional level positions within her office.
With regard to the Senior Executive Analyst position, complainant
states that he was highly qualified and made the best qualified list.
Complainant argues that the selecting official never explained why she
offered an interview to the selectee and not him, other than agency
policies permitted her to do so. As for the Executive Analyst position,
complainant claims the vacancy announcement was canceled so that the
selecting official would not be forced to select from all Black applicants
for the position.
In response, the agency asserts that complainant erroneously stated
that the selectee for the Supervisory Budget Analyst position had no
experience with budget matters. According to the agency, the selectee's
job application reflected her experience with budget matters during
the Executive Leadership Program, when she worked with the Housing
and Urban Development Public Housing Division, as well as the House
Information Resources Division in the Chief Administrative Office of
the House of Representatives. The agency states that leadership skills
were crucial to the Supervisory Budget Analyst position and that the
selectee had extensive experience in the Executive Leadership Program and
an extensive background in psychology and other human resource related
fields. Moreover, the agency points out that complainant dismisses the
fact that the selecting official and other management officials were aware
of his lack of leadership characteristics, his rudeness, the problems he
experienced with employees in the regions, and his inability to foster
confidence in the work he provided to the field because he provided
inaccurate information. The agency further points out that complainant
has not identified the prior EEO protected activity of which the selecting
official was aware. With regard to the Senior Executive Analyst position,
the agency asserts that the decision to interview only the selectee was
fully consistent with the Personnel Manual guidelines on interviews
for non�bargaining unit positions, which does not require interviews
of all candidates. Additionally, the agency states that the selection
decision was based on the selectee�s qualifications and experience.
With regard to the cancellation of the vacancy announcement for the
Executive Analyst position, the agency states that the cancellation
occurred due to concerns about full-time equivalents.
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.
With respect to complainant not being selected for the positions at issue,
we shall assume arguendo that complainant set forth a prima facie case
under the alleged bases. The agency stated that complainant was not
selected for the Supervisory Budget Analyst position based on his lack
of leadership skills, difficulties with employees in the regions, and
his argumentative nature and unreliability with regard to assignments.
The selecting official stated that she was impressed with the selectee's
honesty, flexibility and willingness to accept constructive criticism.
The selecting official stated that she was further impressed by the
selectee's grasp of leadership roles. With regard to the Senior
Executive Analyst position, the agency stated that the selectee had
extensive supervisory and managerial experience. The agency further
stated that the selectee's job application reflected a more varied
range of experience related to the position criteria than that which was
reflected in complainant's job application. With regard to the Executive
Analyst position, the agency stated that the vacancy announcement was
canceled due to concerns about full-time equivalents and whether the
temporary promotion of a GS-12 employee to a GS-13 position would become
permanent or whether the employee would return to the GS-12 position. We
find that the agency articulated legitimate, nondiscriminatory reasons
for not selecting complainant for the positions at issue.
Complainant claims that he deserved to be selected for the Supervisory
Budget Analyst position based on his experience with budgetary matters.
He stated that he has 23 years of budget experience with the agency and
that the selectee lacked budget experience. We find that complainant
has not refuted the agency's position that leadership skills and
human relation skills were important aspects of this position and that
the selectee presented strong leadership and human relation skills.
Complainant also has not refuted the agency's position that he experienced
conflicts with Regional officials. With regard to the Senior Executive
Analyst position, complainant argues that the agency's discriminatory
action is reflected in the fact that only the selectee was interviewed
prior to the selection. We find that complainant has not refuted the
agency's position that it chose the selectee based on his supervisory
and managerial experience, and his varied experience with regard to the
position criteria. As for the Executive Analyst position, complainant
argues that the vacancy announcement was canceled because the only
candidates on the best qualified list were Black and that the agency
canceled the position rather than hire a Black candidate. However,
complainant has not proffered evidence that refutes the agency's position
that it had concerns about full-time equivalents and whether the temporary
promotion of a GS-12 employee to a GS-13 position would become permanent
or whether the employee would return to a GS-12 position. We find with
regard to each of the claims that complainant has not established by
a preponderance of the evidence that the agency's stated reasons were
pretext intended to mask discriminatory motivation.
The Commission AFFIRMS the agency's final order finding no discrimination.
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
November 7, 2005
__________________
Date