01A24302
09-15-2003
Anna S. Richard, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Anna S. Richard v. Social Security Administration
01A24302
September 15, 2003
.
Anna S. Richard,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A24302
Agency No. 01-0397-SSA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the 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.
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 a Contract Specialist, GS-6, at the agency's Mid-American
Program Service Center, in Kansas City, Missouri. Complainant sought
EEO counseling and subsequently filed a formal complaint on May 15,
2001, alleging that she was discriminated against on the basis of age
(D.O.B. 2/6/39) and in reprisal for prior EEO activity when she was not
selected for the position of Contact Representative (Technical Support
Technician), GS-962-7, posted under Vacancy Announcement No. 338-00.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency found that complainant established a prima
facie case of age and reprisal discrimination. The FAD also found that
the agency articulated a legitimate, nondiscriminatory reason for not
selecting complainant. Specifically, that based on the recommendations
by the candidates' supervisors, the selectees were better qualified than
complainant. Ultimately, the FAD determined that complainant failed to
proffer sufficient evidence to demonstrate that the agency's articulated
reasons were pretexts for discrimination. Complainant failed to provide
a brief on appeal. The agency requests that we affirm its FAD.
As a preliminary matter, we note that we review the decision on an appeal
from a FAD issued without a hearing de novo. 29 C.F.R. � 1614.405(a).
To prevail in disparate treatment claims such as these, 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). 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, 120 S.Ct. 2097 (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). In nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant has not established that her qualifications were �plainly
superior,� nor has she presented any other evidence which contradicts
the testimony of the selecting official or recommending panel, or which
undermines their credibility as witnesses.
Ultimately, the agency has broad discretion to set policies and 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; Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find
that complainant failed to establish that the selecting official's
articulated reasons for not selecting her are unworthy of belief.
Further, complainant has not demonstrated that the selecting official
or members of the recommending panel were motivated by discriminatory
animus towards complainant's protected bases. Therefore, after a careful
review of the record, including 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
September 15, 2003
__________________
Date