0120101515
08-03-2010
Cruz C. Alvarez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cruz C. Alvarez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101515
Hearing No. 540-2009-00076X
Agency No. SF-08-0174
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 25, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a Claims Representative, GS-0105-11, at the Agency's Region IX, Southwest Area, Tucson Field Office in Tucson, Arizona.
On February 21, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male), age (over 40), and in reprisal for prior protected activity when:
he was not selected for the Supervisory Social Insurance Specialist, Operations Supervisor position (OS) (GS-105-12) in the Agency's Tucson District Office (Tucson DO).
Following the investigation into the formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 9, 2009, the AJ issued a decision by summary judgment in favor of the Agency. In its January 25, 2010 final order, the Agency implemented the AJ's decision.
In her decision, the AJ found that Complainant established a prima facie case of sex, age and reprisal discrimination. The AJ nonetheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The record reflects that the Human Resources reviewed the list of applicants, including Complainant, to determine the Merit Promotion Certificate of Eligibles (Best Qualified (BQ) Certificate). The record further reflects that the applicants were rated and ranked based on their applications, the duties of the position and the merit promotion principles to determine who would make the BQ Certificate. The BQ Certificate was given to the selecting official (SO).
In his declaration, SO stated that he sought an applicant "with current experience in technical and program issues related to processing initial Title II claims." SO further stated that it was vital to choose someone with experience processing Title II claims under the current rules, so the selectee would be capable of performing the work immediately. SO stated that he felt it was important to make such a selection, because he would shortly be leaving the Tucson DO and the other Tucson DO management officials were new to their positions.
Further, SO stated that after receiving the BQ Certificate, he and the Assistant District Manager, also Complainant's second line supervisor (S2), calculated point values for all applicants with current Title II experience. Specifically, SO stated that applicants received points for education, awards and trainings, and that the point values "were not dispositive of who would receive the position. The scoring system provided a composite and helped organize the qualifications of each candidate." SO stated that he chose the selectee for the OS position because of her highest score "due to her educational background, the initiative shown by her participating in self-development, and awards she had received." SO stated that the selectee was an outstanding Title CR and that the selection was predicated upon "her successful performance as Management Support Specialist (Lead Social Insurance Specialist or MSS), her four Recognition of Contribution Performance Awards (ROCs), her excellent time management skills, her proficiency in utilizing the Title II Workload Management System, and her demonstrated potential as a mentor."
SO stated that he did not select Complainant for the subject position because his application "was not scored, because he did not have current experience in processing initial Title II claims." Specifically, SO stated that Complainant did not have the necessary Title II experience and "he did not have recent experience using our computerized system to develop initial claims, did not have experience using our Workload Management System, had received no ROCs in the last five years, and did not demonstrate the same superior qualities as [Selectee]." SO stated that Complainant's sex, age and prior protected activity were not factors in his determination to select selectee for the subject position.
S2 stated that she and SO reviewed the candidates' application packages and applied the scoring process. Specifically, S2 stated that she and SO "first look for applicants that there Title II claims representatives. From those candidates, we scored each candidate based on awards that were received in the last five years, particularly Recognition of Contribution (ROC) awards and Quality Step Increase (QSI) in the last five years; education, courses/training/self development in the last three years; training assignments/developmental details/leadership development program (LDP), etc., in the last three years; and proficiency in computer programs, such as MS Word, Excel, Power Point, and Access. We applied points for each of these categories and totaled the points received. The candidate that was selected for the position received the highest number of points."
ANALYSIS AND FINDINGS
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.
We note that Complainant, on appeal, argues that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact. For instance, Complainant argues that the Agency "was negligent in its investigation of Complainant's case and that the resulting Report of Investigation was incomplete to the point that it's used is highly prejudicial to Complainant's case to the point that he is not able to prove and substantiate his case." Complainant further argues that his qualifications "are superior to those of [the named Selectee] by showing he has worked all aspects of all programs. The agency is relying on [SO's] explanation as to why he selected [Selectee] with part of his selection based on her experience in the MSS position, what he will not state is that he selected her for that positions over everyone else when she had no management experience at all, again he could have selected others with more experience, yet another pretext to continue his discriminatory behavior." Complainant argues that he "is able to learn in a minimal amount of time all Title II Management Workload Systems the same way he has learn the SSI system."
Further, Complainant argues that a complete review of the criteria used by SO during the selection process "will show that the process used by [SO] was used to hide his discriminatory actions against all individual over the age of forty, especially complainant." Complainant argues that SO did not participate in the Alternative Dispute Resolution or provide the investigator with an affidavit prior to his departure in March 2008 and because he was not provided with an affidavit prior to SO's departure, the Agency acted in bad faith. However, despite the above referenced arguments, the Commission determines that the investigation was properly conducted, and that complainant has provided no persuasive arguments indicating any improprieties in the agency's findings. We note, for example, that the AJ properly determined that although Complainant asserted that S2 used a self-prepared management assessment form, Complainant presented no evidence that S2 created the form with discriminatory intent. The AJ further noted that while Complainant also asserted that S2's affidavit should be ignored, S2 did not file an affidavit as part of the investigative report but that the Agency, instead, had included the affidavit as part of its summary judgment motion.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
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
August 3, 2010
__________________
Date
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0120101515
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101515