0120111141
03-13-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111141
Hearing No. 410201000007X
Agency No. ATL090021SSA
DECISION
On December 18, 2010, Complainant filed an appeal from the Agency's November 18, 2010, final order concerning his 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge's finding that Complainant was not retaliated against as alleged is supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Supervisor at the Agency's Southeast Office in Atlanta, Georgia.
On December 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when he was not selected for the Social Insurance Specialist, Program Expert position, GS-13.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on October 12, 2010, and issued a decision on October 14, 2010.
The AJ found that Complainant applied for the position at issue. After the Vacancy Announcement closed, a certificate of eligible candidates was issued. The certificate was sent to the Selecting Official (SO). She forwarded the certificate along with the applications to two of her subordinate supervisors. They served as the panel for making the selection. They did not conduct interviews, and, did not look at the applications, but only the names of the 24 applicants. They selected two candidates for the position, but not Complainant.
The AJ found that Complainant established a prima facie case of reprisal. Specifically, the AJ noted that the selecting official (SO) knew of Complainant's prior EEO activity. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that the individuals involved in the selection panel denied that they retaliated against Complainant, and maintained they recommended the most qualified candidates for the position. The SO merely acted upon those recommendations. The selection panel members denied that the SO was involved in the selection process. The AJ found that Complainant failed to demonstrate that the Agency's proffered reasons were a pretext for reprisal. The AJ noted Complainant's assertion that a pattern of reprisal existed because the SO retracted an award for another employee who filed an EEO complaint. Complainant also asserted that no individual who filed an EEO complaint was promoted. The AJ found that these assertions were unsubstantiated and that Complainant failed to put forth sufficient evidence to corroborate his assertions.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he established that the Agency was motivated by retaliatory animus. Specifically, Complainant argues that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. Complainant asserts that the Agency's reasons as to why they did not hire him were too vague. Complainant also argues that the qualifications set out in the applications for the position were not considered and the Agency did not use set criteria, objective scoring, or another rating system. Complainant argues that he provided sufficient evidence that his qualifications are plainly superior to the qualifications of the selectees. Complainant further argues that he established a causal connection between his prior EEO activity and the Agency's failure to promote him.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
As noted above, the AJ found that Complainant established a prima facie case of retaliation, and that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record reveals that selecting panel did not review the individual candidates' applications, because everyone on the Merit Certificate List was determined to be equally qualified. However the panelists noticed two individuals who were on their respective teams and who they were familiar with because of their work. One of the panelist stated in her affidavit that she had worked with both selectees and that they "knew their duties and work habits." The panelist stated that the selectees could "take on the additional duties seamlessly" and were the only ones who could have done so without "extensive training." The other panelist stated that one of the selectees had been acting in the position at issue for two years at the time of the selection. While Complainant correctly asserts that no one clearly stated why he was not selected, the record is replete with testimony regarding the qualifications of the selectees and as such, we find that the Agency satisfied its burden.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. While Complainant correctly asserts that no one clearly stated why he was not selected, Complainant has failed to demonstrate that his qualifications were so plainly superior to those of the selectees. As noted above, the selectees, because of their prior experience, were considered the best qualified because they could take on the additional duties without "extensive" training, unlike the other candidates. Further, with regard to Complainant's assertions that the SO previously engaged in retaliatory practices, we agree with the AJ that the record was not sufficiently established to support these assertions. Complainant merely asserts that it is so. Accordingly, we find that Complainant failed to establish that the Agency's proffered reasons were a pretext for retaliation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision finding that Complainant failed to demonstrate that he was retaliated against as alleged is supported by substantial evidence in the record. We therefore AFFIRM the Agency's final order adopting the AJ's decision.
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
__3/13/15________________
Date
1 The record reveals that Complainant withdrew the allegations of sex, age, and race discrimination with regard to this claim. Complainant also withdrew a claim alleging that he was discriminated against with regard to another nonselection.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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