0120130205
07-08-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120130205
Hearing No. 410-2010-00382X
Agency No. ATL-10-0077-SSA
DECISION
On October 17, 2012, Complainant filed an appeal from the Agency's October 1, 2012, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Operations Supervisor at the Agency's South DeKalb office in Decatur, Georgia.
On December 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), sex (male), age, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on October 5, 2009, he was not selected for the position of Social Insurance Specialist (Program Expert Disability), GS-0105-13, under Vacancy Announcement Number SG-277121-09-LC
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. Complainant filed his Proposed Facts and Response in Opposition to the Agency's Motion for Summary Judgment. In his response, Complainant indicated that he was no longer pursuing his claim of age-based discrimination.
Over Complainant's objections, the AJ assigned to the case granted the Agency's October 18, 2010, motion for a decision without a hearing and issued a decision without a hearing on September 19, 2012.
The AJ noted that the Center Director (Black female) delegated the authority for the selection process to two Team Leader Supervisors (TLS1, Black male and TLS2, Black female) and the Deputy Director (White male) served as the concurring official. TLS1 and TLS2 were given the application package by the Deputy Director. They used the Center Director's office to review the packages for the candidates' writing skills, work experience related to the position and awards. TLS1 and TLS2 did not consider the candidates who they judged to be poor writers. They then looked at the candidates work experience. They ranked the top five candidates which included Complainant and the Selectee (Black female). The AJ noted that Complainant was not the top ranked candidate and that the Selectee ranked in first place. Based on their review, TLS1 and TLS2 selected the Selectee for the position in question. They specifically noted the Selectee's experience at the facility as a Social Insurance Specialist (Disability Specialist) doing the tasks of the advertised position and had recently been selected for awards. TLS1 and TLS2 submitted their recommendation to the Deputy Director who concurred with their recommendation. The Deputy Director informed the Center Director who expressed no concerns over the selection.
The AJ found that there were no material facts in dispute. As such, the AJ believed that the matter was appropriate for summary judgment. The AJ held that, assuming Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its action. Further, the AJ determined that Complainant failed to establish that the Agency's reason was pretext for discrimination or that his qualifications were so observably superior to that of the Selectee. The AJ noted that Complainant argued that the Center Director had been found to have subjected a female coworker to unlawful discrimination in 2002 in which Complainant provided an affidavit in support of his coworker. However, the AJ found that a finding of discrimination against another employee some seven years before this non-selection was not sufficient to show that the Center Director subjected Complainant to discrimination in the instant matter. Further, as to Complainant's claim of unlawful retaliation, the AJ indicated that he focused his claim based on the Center Director, not TLS1, TLS2 or the Deputy Director who were the recommending and concurring officials. The AJ held that Complainant failed to show how the Center Director influenced the selection of the Selectee in order to retaliate against Complainant. Complainant did not provide support for his assertions against the Center Director. Therefore, the AJ concluded that Complainant failed to establish that the Agency subjected him to unlawful discrimination based on his race, sex, and/or prior EEO activity.
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.
This appeal followed. On appeal, Complainant asserted that summary judgment was not appropriate. He claimed that he had provided evidence to establish pretext on the part of the Agency to conceal discrimination. He also asserted that his application was observably superior to that of the Selectee. He noted that the Selectee had significantly less time with the Agency and job experience in the area of disability programs. He also pointed that the Selectee only received two awards for her work in the Center for Disability. He argued that only one Black male has been selected for a promotion from October 2007 to October 2009 and that he has been denied several promotions. Complainant argued that the Center Director has been found to have subjected a coworker to unlawful discrimination and hostile work environment. Complainant argued that the Center Director has not changed her discriminatory practices. Finally, Complainant claimed that the AJ relied upon affidavits provided by the Agency in support of its Motion for Summary Judgment from the TLS1, TLS2 and the Deputy Director which failed to provide details of the criteria they used to choose the Selectee; provide new information not previously given; and sheds doubt on their veracity. Therefore, Complainant argued to that the matter should be remanded for a hearing.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate.
We note that Complainant argued that the veracity of TLS1, TLS2 and the Deputy Director were at issue. However, we find that Complainant has not shown any inconsistency or other evidence beyond his bald assertion to support his claim that the selecting officials and concurring officials are not truthful. Without any evidence to support his argument and upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for selecting the Selectee. TLS1 averred that the Selectee had been performing the position for over two years. He also stated the "We looked at his writing and there were actually three or four candidates that came out ahead of him as far as our ratings were concerned." TLS2 averred that the Selectee's writing and work experience made her the best candidate for the position. Based on their review of the candidate applications, TLS1 and TLS2 provided the Deputy Director with their recommendation. He concurred with their recommendation based on their presentation that the Selectee was "the best applicant based on her application as far as the content exhibiting disability experience and how well written it was as well as having received recent performance awards."
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant argued that the Center Director has a history of discriminating against Black males. We note that Complainant has not shown, nor does the record indicate that the Center Director was involved in the selection of the Selectee. TSL2 averred that they were given the authority to make the selection and used the Center Director's office to review the applications. However, she asserted that the Center Director was not present during the review. Furthermore, in a non-selection case, a complainant may show that an employer's reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were "plainly superior" to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant argues that his qualifications were plainly superior to those of the Selectee. We note that the Selectee has been serving in the position for which she applied. We find, upon review, that Complainant has not established that his qualifications were "plainly superior" to those of the Selectee. Therefore, we find that the AJ properly concluded that Complainant failed to establish he was subjected to unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order adopting the AJ's decision finding no discrimination.
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
July 8, 2015
__________________
Date
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0120130205
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130205