0120064350
03-28-2008
Jerry L. Myles, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jerry L. Myles,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120064350
Hearing No. 120a50358X
Agency No. 040269SSA
DECISION
On July 19, 2006, complainant filed an appeal from the agency's July
3, 2006, 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 appeal is deemed timely and is accepted for the Commission's
de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Information Technologist Specialist in the Mainframe Integration
and Stress Testing Branch (MISTB) of the Division of Integration
and Environmental Testing (DIET), Office of Telecommunication and
System Operations (OTSO) at the Social Security Administration (SSA)
in Baltimore, Maryland. On June 6, 2003, complainant applied for a
GS-13 position of Lead Information Technology Specialist, posted under
VA #K-1849. Complainant and eight other applicants made the Best
Qualified List (BQL) and received an interview. The interview panel
evaluated the applicants' responses to standard questions and rated the
applicants "Highly Recommended", "Recommended", or "Not Recommended."
On September 7, 2003, the Agency promoted a white female under the
position. Two additional selections for positions under VA #K-1849 were
made from the BQL. One of the candidates selected was a black female
and the other was a white male.
Complainant applied for monthly training courses to sharpen his skills
to do his job and advance his career. Complainant requested training
courses that lasted a week or more and was approved for three internet
and technical courses of 5 days each. On April 28, 2004, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (African-American) and sex (male) when:
1. He was not selected for the position of Lead Information Technology
Specialist, GS-2210-13, advertised under Vacancy Announcement Number
K-1849.
2. He was not selected to attend eight training courses of his choosing
in November, 2003.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). On June 10, 2005,
the Agency filed its Motion for Summary Judgment. Complainant did
not file his response until three months later, on September 23, 2005.
On November 4, 2005, the Agency filed a Motion to Strike Complainant's
Opposition and Response to the Agency's Motion for Summary Judgment.
The AJ did not consider Complainant's Response since it was issued
more than three months after it was due. The AJ assigned to the case
considered the Report of Investigation and determined that the complaint
did not warrant a hearing and issued a decision without a hearing on
June 19, 2006.
As to claim (1), the AJ found that Complainant's claim was time-barred
since he did not seek EEO counseling within the requisite 45 days for
initiating EEO counseling. The AJ further found that Complainant failed
to establish a prima facie of discrimination on the bases of sex and
race for claim (1). The AJ also found that the Agency had legitimate,
non-discriminatory reasons for its actions. The AJ noted that three
selectees received higher ratings on the promotion package for VA #K-1849
than Complainant.
As to claim (2), the AJ found that Complainant's claim was time-barred
since he did not seek EEO counseling within the requisite 45 days.
The AJ further found that the Agency had legitimate non-discriminatory
reasons for its actions; namely the unapproved courses were not
relevant either to the Agency's mission or to Complainant's position,
and if all eight courses were approved, no one would have been able to
complete Complainant's work. The Agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant claims he initiated EEO Counselor contact in a
timely fashion. Complainant claims he was not made aware and could not
have officially been put on notice that he was not selected until the
promotion was posted on December 19, 2003. Complainant claims he has
established a prima facie case of race discrimination because one of the
selectees was a white femaile. Complainant claims he was more qualified
than one of the selectees. Complainant also claims that irregularities in
the interview process for selection reflect discrimination. Complainant
does not address claim (2). Complainant claims he is entitled to a
hearing.
The Agency argues that the AJ properly determined that Complainant's
claims were untimely raised. In the alternative, the Agency argues that
the AJ properly found that Complainant failed to establish a prima facie
case of discrimination based on sex and race. The Agency also argues
that the AJ properly found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. The Agency argues that the
Complainant has failed to demonstrate that the Agency's articulated
reasons were a pretext to mask discrimination. The Agency asks that we
affirm the final order.
ANALYSIS AND FINDINGS
We must first 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 a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider issuing a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an
AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally 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). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. 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); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
We will assume, arguendo, that Complainant's claims were timely, and
Complainant established prima facie cases of discrimination on the bases
of race and sex. As to claim (1), we find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. The record shows
that Complainant was ranked five out of nine candidates. The Agency's
interview panel rated one of the selectees as "Highly Recommended" and
the other two "Recommended." Complainant was rated "Not Recommended." The
Agency stated that Complainant did not perform well in his interview
because of his vague and incomplete answers to some of the questions.
Complainant stated that the Agency Interview Process for selection is
a mask for its intent to discriminate; and the interview process is
creating a "glass ceiling" in which no Black male has been promoted to
a GS-13 position. The Supervisory Technology Specialist also stated
he has set up mock interviews to help improve Complainant's interview
skills, which Complainant does not dispute. We find that complainant has
presented no persuasive evidence proving that the Agency's articulated
reasons are pretext for race and sex discrimination that would create
a genuine issue of material fact for claim (1).
As to claim (2), Complainant's claim that he was denied training
opportunities because of sex and race discrimination fails. We find that
the Agency has articulated a legitimate, nondiscriminatory reason for
its actions; namely, the training courses are limited and 25-30 employees
apply for 2-3 allotted slots per class. In finding so, we note that the
record indicates Complainant received three internet and technical classes
that he requested. The Agency further stated that Complainant requested
training that was not relevant to his position. The record shows that
Agency policy states that approval of training courses is based on the
potential use of employee's current position. Complainant stated that one
of his classes was canceled because of his race and sex. The Supervisory
Information Technology Specialist stated he canceled the class because
he needed Complainant at work, and there was no one to perform his job.
The record shows that this class was rescheduled. Complainant does not
dispute these facts. We again find that Complainant has presented no
persuasive evidence proving that the Agency's articulated reasons are
pretext for race and sex discrimination. Therefore, we find that the AJ
properly found no discrimination.
CONCLUSION
Based on a thorough review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. Therefore, we AFFIRM the agency's final
order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_March 28, 2008________________
Date
2
0120064350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120064350