0120070994
05-08-2008
Jill Martin, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jill Martin,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120070994
Agency No. 051826SSA
Hearing No. 410200600160x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the decision of the Administrative Judge in regard to
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.1
At the time of the events herein, complainant was a Human Resources
Specialist (HRS), GS-12, in the agency's Atlanta, Georgia, office.
She claimed discrimination based on race (African-American) and sex
(female) when she was not selected for the position of HRS, GS-13, in
July 2005, in favor of a Caucasian male (ES). Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ conducted a hearing on September 20, 2006, and issued a decision
dated September 27, 2006 (mailed on September 28, 2006), finding that
the agency did not discriminate against complainant.2
Initially, the AJ reviewed the application process and the consideration
of the four candidates by the selecting official, the Director of
Human Resources (SO). In her decision, the AJ found that the agency,
through the SO, articulated legitimate, nondiscriminatory reasons for its
selection decision and that complainant failed to demonstrate pretext.
The SO stated that she selected ES because of her subordinate's
recommendation, her personal knowledge and review of the applications
of the candidates, discussions with her supervisors, ES's academic
accomplishments and selection to the agency's Outstanding Scholar Program,
and his demonstrated abilities to initiate and prioritize his workload,
leadership skills, and analytical proficiencies. The SO stated that
she did not select complainant because she is not a team player, missed
numerous meetings, had poor communication skills, and her subordinate
did not recommend her. The AJ concluded that, although complainant
argued that her seniority should have been a factor or that her skills
were plainly superior, the complainant failed to show that the reasons
provided were pretextual.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an AJ will be upheld if supported by substantial evidence in the
record. Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held. After review of the record in this matter, we find that the
decision of the AJ accurately stated the facts and correctly applied
the pertinent principles of law.3
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 (S0408)
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 (Z0408)
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
___05-08-2008_______________
Date
1 The agency did not issue a final order, and the AJ's decision became
final after 40 days. We find that complainant's appeal was timely filed.
See 29 C.F.R. � 1614.109(i).
2 Complainant's complaint was consolidated for hearing and decision with
two other applicants; those complainants did not file appeals from the
AJ's decision.
3 In the case of a nonselection, the Commission utilizes the
comparative qualification standard to determine whether a selection was
discriminatory. The comparative qualifications standard provides that
"disparities in qualifications must be of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over [complainant] for the
job in question." Ash v. Tyson Foods, Inc., 190 Fed. Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). In the present case, there is no evidence to support
such a finding.
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0120070994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070994