0120101957
08-23-2010
Maria L. Garcia, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Maria L. Garcia,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120101957
Agency No. DAL-08-0900-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 25, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant sought employment under a Schedule A appointment with the Agency's Corpus Christi, Texas District Office.
On October 23, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of disability (herniated disk, trauma, emotional distress, sleepiness, anxiety, depression and fatigue) when:
on September 3, 2008, she was denied the opportunity to apply for employment under the Schedule A hiring authority for employees with disabilities.
The record reflects that in order to qualify for employment under Schedule A hiring authority (non-competitive appointment), a person must have the following: proof of disability and certification of job readiness. The record further reflects that Complainant alleged that on August 27, 2008, she contacted the Corpus Christi District Office and spoke with the District Manager (DM) regarding the Schedule A program. Complainant alleged that she explained to DM that she had a disability and was seeking employment, but that DM told her that he had no recollection of a Schedule A program and had never hired anyone under the Schedule A program. Complainant alleged that she then contacted the Agency's Dallas Regional Office and spoke with the Senior Human Resources Specialist (S1). Complainant stated that according to S1, she had no recollection of the Schedule A program and that it had been done away with.
Further, Complainant stated that she contacted the Program Coordinator (PC) at the Agency's Headquarters Office in Baltimore, Maryland. Complainant stated that PC later contacted her and notified her that the Schedule A program was available with the Agency. PC asked her to send a copy of her resume by email to the Lead Human Resources Specialist (L1) in Dallas, Texas. Complainant stated that even though she emailed her resume via email to L1, L1 never contacted her. The record reflects that L1 forwarded Complainant's resume to SSA managers for review and response. The record reflects that on October 19, 2008, Complainant received an email from DM stating there were no openings in the Corpus Christi office and that he did not expect to have any openings in the near future.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on February 19, 2010, pursuant to 29 C.F.R. � 1614.110(b).
In its February 19, 2010 final decision, the Agency found that assuming, arguendo, Complainant established a prima facie case of disability discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The Agency further found that Complainant's contact with the Corpus Christi office was an inquiry, and not an application for Agency employment.
DM stated that he did not deny Complainant the opportunity to apply, "nor do I know of anyone denying the Complainant an opportunity to apply for employment." DM further stated that he recalled receiving a call from a woman, with Complainant's surname, during the summer and "I do not recall the first name and I do not recall the exact name. The lady who called asked me if we were hiring. I told her no because we had just hired an individual in May. She asked several questions about how and where we posted our vacancies and about our hiring process. She later informed me that she was an approved Schedule A hire and asked me if I had any Schedule A vacancies. I stated to her that I was not familiar with Schedule A hires but, I did not have hiring authority. At the time of the conversation, I did not recall what Schedule A meant. She seemed upset that I did not know what Schedule A meant and upset that we had already hired from out from the outside." Furthermore, DM stated "currently, there are no positions available in my office under any hiring authority."
S1 stated that she does not handle Schedule A hiring and that "inquiries received about Schedule A are referred to [L1]. The manager of the office has the option of which hiring authority to use to fill vacancies." S1 further stated "I talk to a lot of people every day and do not recall actually talking with Complainant. I do not have any recollection of talking with her about anything. I do know though that if she did contact me regarding the Schedule A hiring authority, I would not have told her that the hiring authority no longer existed. The program is regulated by the Office of Personnel Management and is definitely still in effect."
L1 stated that she did not have a role in Complainant's allegation that she was denied the opportunity to apply for employment under Schedule A. L1 stated "to my knowledge, [Complainant] was not denied the opportunity to apply for employment. I really do not recall speaking directly with the Complainant."
On appeal, Complainant argues that the Agency erred in finding no discrimination. For instance, Complainant argues that DM and S1 "Intentionally Discriminated with Disparate Treatment on August 27, 2008. Furthermore, Agency, [DM], [S1], and [L1] are not in compliance with Schedule A. Program as required by ADA Laws and Office of Personnel Management Regulations'."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that 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 23, 2010
__________________
Date
2
0120101957
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101957
6
0120101957