0120102227
08-26-2010
Iris Robles, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Iris Robles,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102227
Agency No. ATL080762SSA
DECISION
On April 29, 2010, Complainant filed an appeal from the Agency's April 20, 2010, final decision concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 decision.
ISSUE PRESENTED
Whether the Agency was correct in finding that Complainant was not subjected to unlawful discrimination as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bilingual Contract Representative, GS-8, at the Agency's Teleservice Center facility in Ft. Lauderdale, Florida. Complainant is confined to a wheel chair due to a spinal injury. On June 23, 2008, the Agency issued Vacancy Announcement SB-196455-08-PB for the position of Lead Contact Representative (Bilingual) (Technical Assistant), GS-09, at the Teleservice Center in Ft. Lauderdale, Florida. The position required the use of bilingual skills to assist the public with their Social Security issues. Further, the position required the selected candidate to provide assistance to Teleservice Representatives in handling telephone inquires and other matters from the public. Complainant was one of five applicants listed on the Merit Promotion Certificate of Eligibles, but was not selected for the position. The selectee (Cuban, nondisabled), was also a Bilingual Contact Representative at the time of her selection. The center's Manager (Caucasian) served as the selecting official for the position. The center's Assistant Manager (African-American) and Supervisor (Dominican Republic) served as concurring officials for the selection of the position. Prior to the selection, Complainant had used 100.75 hours of sick and annual leave from March 30 to July 5, 2008. The selectee, in comparison, had used 40 hours of leave during this time period.
On September 12, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Puerto Rican), disability, and reprisal for prior protected EEO activity when she was not selected for the Lead Contract Representative (Bilingual) (Technical Assistant) position, GS-9, filled under vacancy announcement number SB-196455-08-PB.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its decision, the Agency found that it articulated legitimate nondiscriminatory reasons for not selecting Complainant for the position. Specifically, the Agency noted that although both the selectee and Complainant were equally qualified for the position, the selectee was chosen because she was more dependable than Complainant. In this regard, the Agency noted that Complainant's attendance was irregular. The Agency noted that Complainant would often not only miss work, but would provide little or no notice. In comparison, the Agency found the selectee's attendance was more reliable. The Agency indicated that attendance was important for the position since the selected candidate would be responsible for mentoring many new employee trainees. The Agency further found that Complainant failed to show that its nondiscriminatory reasons were pretext for discrimination. The Agency also found that Complainant failed to show that her qualifications were "plainly superior" to that of the selectee.
CONTENTIONS ON APPEAL
Complainant has not submitted a brief on Appeal. The Agency requests that we affirm its decision.
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").
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
There is no dispute that Complainant is disabled. Assuming, arguendo, that she established a prima facie case of discrimination based on disability, national origin, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is by no means the only way Complainant may establish pretext in nonselection cases. However, the record indicates that Complainant has not offered any such evidence. Upon review, we find that Complainant failed to provide any evidence of pretext in the record. Furthermore, we find that the record is devoid of any evidence that the Agency's actions were motivated by discriminatory animus towards Complainant's disability, national origin, or in reprisal for her prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding that Complainant was not subjected to unlawful discrimination as alleged.
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
____8/26/10______________
Date
2
0120102227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102227