01a04463
04-09-2002
Charles J. Abbonizio, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Charles J. Abbonizio v. Social Security Administration
01A04463
April 9, 2002
.
Charles J. Abbonizio,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A04463
Agency No. 970511SSA
Hearing No. 170-99-8177x
DECISION
Charles Abbonizio (complainant) timely initiated an appeal from the
agency's final order concerning his equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 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, an applicant for a position at
the agency's Philadelphia, Pennsylvania facility, filed a formal EEO
complaint on August 1, 1997, alleging that the agency had discriminated
against him on the basis of disability (prune belly syndrome) when:
(1) he learned in March 1997 that was not selected for the Social
Security Specialist (Disability) positions advertised under Vacancy
Announcement Nos. (VAN) 96-118, 96-199 and 96-258 and;
he was told in December 1996 that his Schedule A disability status
precluded him from an appointment to a position higher than the GS-4/5
level.
The agency originally accepted the allegations of non-selection for
investigation, but dismissed Issue 2 for failure to initiate contact
with an EEO Counselor in a timely fashion. Complainant appealed and
the Commission vacated the dismissal, ordering the agency to conduct a
supplemental investigation into whether complainant had been informed of
the necessity or time limits for initiating contact with an EEO Counselor.
The agency thereafter accepted Issue 2, but, as it had already completed
an investigation into the non-selection issues, determined that a
supplemental investigation was not necessary. 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 essentially adopted that Agency's
Motions for Summary Disposition and Dismissal without comment, noting
that complainant did not raise a genuine issue of material fact relative
to his claims in response to those motions.<1>
The agency's final order implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final order.
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.
Turning first to Issue , and after a careful review of the record, the
Commission finds that the AJ's decision to grant summary judgment was
appropriate, as no genuine issue of material fact exists.
In regard to the positions advertised under VAN 96-118 and 96-119, even
assuming complainant established a prima facie case of discrimination,
he failed to dispute the agency's explanation for his non-selection.
Specifically, the management officials responsible for the relevant
selections testified that, under the rating schedule used, applicants were
given extra points for skill and experience related to: (1) adjudicating
disability claims under federal and state programs; (2) conducting
quality and accuracy reviews of adjudicated claims for benefits; and (3)
adjudicating appeals of initial or subsequent benefit claim decisions.
The selectees for these two positions had done this type of work at the
state level and thereby received higher scores than complainant who had
no experience or skills adjudicating claims or conducting quality and
accuracy reviews of adjudicated claims. Indeed, it is undisputed that
complainant's only relevant experience is a previous job helping people
fill out social security forms so that they could apply for benefits.
Because of his lack of relevant experience, complainant received
the lowest score of all the applicants for the positions. The agency
concluded that the best-qualified individuals were selected. Complainant
did not dispute that the selectees were better qualified than he.
In regard to the position advertised under VAN 96-258, complainant
acknowledged during the investigation that he was not qualified to apply
for that position because it was limited to federal employees.
Accordingly, complainant failed to raise a genuine issue of material
fact in terms of the agency's explanation for his non-selections.
Turning to Issue 2, we note that the agency failed to conduct a
supplemental investigation into whether complainant was made aware
of the procedures and time limits for contacting an EEO Counselor,
despite being ordered to do so by this Commission. See Abbonizio
v. Social Security Administration, EEOC Appeal No. 0198606 (July 30,
1998). After determining that the supplemental investigation ordered by
this Commission was unnecessary, the agency, in its Motion for Summary
Judgment, raised the very argument that was rejected by this Commission
in EEOC Appeal No. 0198606, i.e., that the issue should be dismissed
for failure to contact an EEO Counselor in a timely manner. The AJ
failed to address this issue in her decision. Based on the agency's
failure to provide the information requested, and complainant's still
unrebutted argument that he was unaware of the 45-day time period, we
find that complainant did timely raise this issue before an EEO Counselor.
We find, however, that this allegation does not state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Here, complainant failed to allege how he
was harmed with respect to a term, condition, or privilege of employment,
when he was told by the Assistant Field Office Manager of the New Castle,
Delaware Social Security Office (AFO) that, due to his Schedule A status,
he was eligible for no more than a GS-4/5 position. Although such a
statement could be considered evidence of discrimination, complainant
failed to allege that AFO was involved in non-selections at issue,
or in any other agency action taken involving complainant, or that the
supposed policy ever prevented him from obtaining any particular position.
Moreover, the undisputed evidence of record establishes that complainant
was considered eligible for the GS-11 and GS-12 positions at issue,
although he was ultimately found not to be the best-qualified applicant
for the positions.
Accordingly, construing the evidence in the light most favorable to
complainant, we find that he failed to raise a genuine issue of material
fact as to whether he was subjected to discrimination. The agency's
final order adopting the AJ's finding of no discrimination is therefore
AFFIRMED.
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
April 9, 2002
Date
1 We note that the AJ made no mention of
Issue 2 in her decision.