0120102506
09-28-2010
Eugene Gillispie, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Eugene Gillispie,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102506
Agency Nos. HQ-09-0207-SSA
HQ-09-0339
DECISION
Complainant filed an appeal from the Agency's April 23, 2010, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency's Division of Systems Security and Program Integrity (DSSPI), Office of Public Service and Operations Support (OPSOS), Office of the Deputy Commissioner, Operations (DCO) in Woodland, Maryland. Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of race (African American), sex (male), age (over 40), and reprisal for prior protected EEO activity when:
Complaint No. HQ-09-0207-SSA
1. Complainant received an unfair and inappropriate Performance Assessment and Communications Systems (PACS) rating for 2008 on November 14, 2008.
Complaint No. HQ-09-0339
2.1 Complainant was not selected the position of Social Insurance Specialist GS-015-14, which was posted under Vacancy Announcement Number (VAN) 223253; and
3. Complainant was not selected to the position of Program Analyst (Project Manager). GS-0343-14, which was posted under VAN 228128.
By letter dated May 15, 2009, the Agency consolidated Complainant's complaints for processing. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Claim (1) 2008 Performance Appraisal
In its decision, the Agency found that Complainant participated in a one-year program called the Operations Leadership Development Program (OLDP). Complainant received a "PACS Performance Plan: Non-Managers Appraisal" performance appraisal for 2008 on October 9, 2008, from S1. The Agency noted that Complainant objected to this performance appraisal because Complainant had spent nearly two-thirds of the appraisal year at the GS-14 pay plan/grade level and believed that he should have been evaluated as a manager. Agency Decision (Ag Decision) at 4. The Agency found that S1 had consulted with Complainant's OLDP supervisors. Both supervisors, the Agency found, acknowledged that there were areas where Complainant may have merited an individual rating of Level 5, but both also believed there were areas where Complainant merited an individual rating of Level 3.2 Before Complainant's appraisal was finalized, S2 had replaced S1 as the supervisor issuing Complainant's performance appraisal. Id. at 6.
In its analysis, the Agency found that Complainant did not identify any other employees, similarly situated, not in Complainant's protected classes, who were treated better than he was treated with respect to the performance appraisal for the 2008 appraisal year. Rather, the Agency found that the other participants in the OLDP program with whom Complainant sought to compare himself, were not assigned to the same division (DSSPI). Id. at 8. Further, the Agency found that Complainant did not establish that his age played any role in the Agency's motivation to decide on the format and rating for Complainant's performance during the 2008 fiscal year. Id. Significantly, the Agency found the evidence did not support a finding that S1 and Complainant's succeeding supervisor, S2, were aware of Complainant's prior EEO activity. Id.
Claim (2) Social Insurance Specialist3
The Agency observed that for the position of Social Insurance Specialist, candidates were interviewed by a rotating panel of teams. The interview panelists rated the 11 candidates selected for interviews, using a single template. Out of a possible 20 points, Complainant scored 7.5 in the interview process. Id. at 12. Complainant was not recommended for any of the Team Leader vacancies. Of the three candidates selected, two were outside of Complainant's protected classes. The third selected candidate was a member of Complainant's protected race, sex and national origin groups, and older than Complainant at the time of the selection. Id. The Agency found the evidence did not show that any of the recommending or selecting officials were aware of Complainant's prior EEO activity at the time of the selection process. Accordingly, the Agency did not find that Complainant established a prima facie case of reprisal discrimination. Further, the Agency found that the panel members reviewing Complainant's application materials noted that Complainant's application contained grammatical and spelling errors, while those of the selected candidates did not. Moreover, E1, selected for the position of Program Integrity Team Leader, was highly recommended by his supervisor, and his interview score was 18. Id. at 14. Overall, the Agency found that the selectees did a better job of communicating during the selection process. Their applications were more detailed and more impressive than Complainant's application. Moreover, they performed at a higher level during their interviews, as reflected by their higher interview scores. The Agency found the evidence supported the Agency's legitimate, non-discriminatory reasons for its selections, that Complainant did not show were a pretext to mask discrimination on any basis. Id.
Claim (3) Program Analyst Non-selection
Regarding the Agency's selection for the position of Program Analyst, the Agency noted that S3 was the selecting official, the same official serving as the selecting official for the selection process described in claim (2) of Complainant's consolidated complaints. This official, the Agency again noted, was not shown by the evidence to have knowledge of Complainant's prior EEO activity at the time of the selection. Id. at 17. Similarly, the Agency found that S4, the Agency official recommending the selectee, was unaware of Complainant's prior protected activity, and accordingly, the Agency found that Complainant failed to establish a prima facie case of reprisal discrimination with respect to claim (3).4 Id. Further, for this position, the Agency observed that Complainant was not among the final candidates considered. The selectee (E2) possessed expansive knowledge of Social Security Administration Disability Tools and policies, which Complainant did not possess. The Agency found the reasons cited by S2 and S3 were credible reasons based on the vacancy announcement issued that stressed the importance of analyzing disability claims, which knowledge and skills E2's application indicated the selectee possessed in abundance. The Agency found that the evidence showed that E2 was better qualified than Complainant for the position of Program Analyst. Id. at 18.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In the instant case, we find the record supports the Agency's Final Decision. Specifically, we find, as did the Agency, that Complainant did not present any evidence to rebut the Agency's legitimate, non-discriminatory reasons for its actions. We note that Complainant did not show that the performance rating assigned to Complainant for 2008 was in any manner motivated by consideration for Complainant's race, sex, national origin or in reprisal for prior protected activity. We observe that in his complaint, Complainant points out a number of irregular procedures that appear to have accompanied the issuance of his 2008 performance appraisal. For instance, Complainant alleges that the appraisal was not in the proper format. Report of Investigation (ROI), Exhibit 3, page 19. We do not find evidence that this characteristic5 in the performance appraisal indicates that the rating he received from S2 was motivated by Complainant's race, sex, national origin or prior EEO activity. Additionally, we do not find that Complainant identified other employees, who also participated in the OLDP training program, who were rated by the same supervisors as Complainant, who were treated better than Complainant was treated.
With respect to claim (2) and (3), we do not find that Complainant's qualifications for the positions of Social Insurance Specialist (the Team Leader positions) and the Program Analyst position were plainly superior to those possessed by the selectees. We note that Complainant was interviewed (claim (2)) by individuals who were unaware of Complainant's prior protected activity and who made recommendations based on Complainant's interview and review of the application materials Complainant supplied, upon which the recommending official relied in making their recommendation. ROI, Exhibits 15, 35. We find the errors noted by the recommending officials appear in Complainant's application materials. ROI, Exhibit 30, pages 5, 6. Significantly, we find nothing in the record suggests that unlawful discrimination motivated the Agency's decision.
We further find that the record supports the Agency's consideration that the recommending official sought a candidate with extensive experience in disability claim issues, which Complainant's application did not reflect when compared to that of the selectee (claim (3)). ROI Exhibit 14, page 3.
CONCLUSION
We AFFIRM the Agency's Final 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
September 28, 2010
__________________
Date
1 We have renumbered the claims from this complaint for clarity.
2 The Agency's Decision noted that Level 5 is the highest level that can be awarded. The system does not include a Level 4 rating.
3 The record shows that from this selection process the Agency filled three positions: Compliance Team Leader, Program Integrity Team Leader, and Systems Security Team Leader.
4 The Agency's final decision noted the selectee, E2's, year of birth as 1950, but analyzed claim (3) as if E2 was five years younger than Complainant at the time of the selection. We find the evidence shows that E2 was five years older than Complainant based on the dates of birth indicated on the Standard Form 50 issued to E2 that appears in the record and Complainant's Complaint. Regardless, either age would result in the same finding of no discrimination in this decision.
5 Complainant alleged in his complaint that the PACS performance appraisal was created by a cut and paste process outside the Agency's PACS rating system. This was confirmed by S2, who attempted to modify the critical elements of Complainant's appraisal to reflect the elements on which she believed Complainant was to be rated. Finding that she was unable to change the format in the PACS regular system, she did create the appraisal format with an alternate program. ROI, Exhibit 12, page 3.
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0120102506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102506