01A33952
07-14-2004
Carol Oleksiak, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Carol Oleksiak v. Social Security Administration
01A33952
July 14, 2004
.
Carol Oleksiak,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A33952
Agency No. SSA-99-0290
Hearing No. 170-A2-8330X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
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 order.
The record reveals that complainant, a Claims Clerk at the agency's
Mid-Atlantic Process Service Center facility, filed a formal EEO complaint
on April 15, 1999, alleging that the agency had discriminated against her
on the bases of race (Caucasian), sex (female), age (D.O.B.12/21/42),
and reprisal for prior EEO activity when she was not selected for the
position of Benefits Authorizer (BA), GS-9, in October 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that after viewing the evidence in a light most
favorable to complainant, a decision without a hearing was appropriate
as there were no genuine issues of fact in dispute. The AJ found that
complainant established a prima facie case of sex, race, age, and reprisal
discrimination because there were selectees, who were not in complainant's
protected classes, chosen for the BA position. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons for its
actions. The AJ found that the selecting officials rated the selectees
higher than complainant during their review process. (Investigative
Exhibit (IE) 13 p.2; 13a). Complainant was ranked 16th out of 26. (IE 13
p.2;13a). The AJ concluded that although complainant disputed that she
was less qualified than the selectees, the record showed that the rankings
of the selectees included outstanding and superior scores on the selected
criteria, whereas complainant received lower evaluations (IE 12a;13a).
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant failed to show by a preponderance of the evidence that
the agency's reason was a pretext for unlawful discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant restates arguments previously made. Complainant disputes
the factual information in the record, including the race of certain
selectees. (Compliant's Brief in Support of Appeal at 2-3). Complainant
contends that the record is woefully inadequate, full of inconsistencies,
and contains issues of credibility. Id. at 5. Complainant therefore
argues that the AJ should not have issued a decision without a
hearing. In addition, complainant claims that her previous employment
at the Environmental Protection Agency (EPA) should have been on the
�exempt from merit promotion� list, and chosen under non-competitive
selection for the position. Id. at 3-4.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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). The Commission's regulations allow an AJ to issue
a decision without a hearing when 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, a hearing is required. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for such disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. Although complainant argues that one of the selectees was
classified white when she is a black female, we find this inaccuracy is
not material to the AJ decision because the AJ concluded complainant
established a prima facie case. The record also reveals that the
statements, by the person who complainant claims was never her supervisor,
were not a factor in the selecting official's decision. (IE 14p.2-3).
We find that the AJ's decision properly summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. We note
that the record reveals complainant's qualifications, when compared to
the ratings of the selectees, were not so plainly superior as to warrant
a finding of pretext.(IE 12a; 13a). On the issue of non-competitive
selection, the agency concedes that complainant was employed at the EPA at
the GS-11 level, however, the agency argues that the work complainant did
at the EPA was unrelated to the duties of the BA position.(Agency Brief in
Response to Appeal at 36-38). The agency contend that exemption applies
to former agency positions, not necessarily all government positions.
Id. at 36. The record reveals that complainant's prior agency position
was GS-4. (IE 17). Therefore, we conclude that complainant would not
have been exempt from agency competition at the GS-9 level.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes or animus based on prior EEO activity. We discern no
basis to disturb the AJ decision. Therefore, the Commission AFFIRMS the
agency's final decision.
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
July 14, 2004
__________________
Date