01995130
02-21-2002
Michael A. Souza, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Michael A. Souza v. Department of Health and Human Services
01995130; 01A02779
February 21, 2002
.
Michael A. Souza,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal Nos. 01995130; 01A02779
Agency Nos. HCF-362-94; 97-043-HCF
Hearing Nos. 370-97-x2528; 370-98-x2476
DECISION
Michael A. Souza (complainant) timely initiated appeals with the
Equal Employment Opportunity Commission (EEOC or Commission) from
final agency decisions (FAD) dated May 11, 1999, and January 20, 2000,
concerning his complaints alleging that he was discriminated against on
the bases of his sex (male) national origin, (Portugese/Hispanic), and
age (date of birth: January 12, 1951) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. (1994 &
Supp. IV 2000) and the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. � 621 et seq. (1994 & Supp. IV 2000). Accordingly,
the appeals are accepted pursuant to 29 C.F.R. � 1614.405.
In complaint no. HCF-362-94, complainant alleged that he was discriminated
against on the basis of his age, sex, and national origin when he was
given a cash award in the amount of $500 on September 1, 1993, which
complainant deemed an inadequate reward for the work he performed, which
saved the agency an estimated $1.25 million. In complaint no. 97-043-HCF,
complainant alleged that he was discriminated against on the basis of
reprisal (prior Title VII, ADEA)<1> when he was not selected for the
position of Health Insurance Specialist, GS-107-13 in March of 1997. For
the following reasons, the Commission consolidates these complaints and
AFFIRMS the agency's final decisions.
The record reveals that complainant, a Health Insurance Specialist,
GS-107-12 at the agency's Medicare Division of the Health Care Financing
Administration (the division) in San Francisco, California, filed formal
EEO complaints with the agency in December 1993, and June 1997, alleging
that the agency discriminated against him as referenced above. At the
conclusion of the investigations, complainant received a copy of the
investigative reports and requested hearings before EEOC Administrative
Judges (AJ).
In both complaints the AJ issued a decision without a hearing, finding
no discrimination. In complaint no. HCF-362-94, the AJ concluded that
assuming arguendo, that complainant established a prima facie case
of age, sex or national origin discrimination when he only received a
$500.00 award, instead of the greater amount suggested by the Office of
Personnel Management in its Federal Personnel Manual (FPM), complainant
could not show that a similarly situated person not within his protected
groups was treated more favorably. Specifically, the AJ found that the
person complainant compared himself to, his supervisor (S-1), was not
similarly situated. The AJ found that S-1 was complainant's second line
supervisor, had a different job, worked under a different supervisor,
and was subject to different standards. Second, the complainant compared
two different budget years, 1993, the year in which he received his
$500.00 Special Achievement Award, and 1990, the year in which S-1
received a $1500.00 Performance Award. The AJ concluded that complainant
presented no claim or any evidence that a similarly situated employee of
a different protected group who saved the agency a substantial amount of
money in the 1993 budget year, as complainant did, received a greater
monetary award. Finally, the AJ concluded that the agency introduced
a legitimate non-discriminatory reason for its action, namely, that the
total awards budget for the division in 1993 was limited, and complainant
failed to show that the agency reason was pretextual.
Regarding complaint no. 97-043-HCF, complainant argued that the
selecting official and the interviewing panel, with the exception of
one member, was the same for the non-selection which was the subject
of his EEO complaint in 1996, one year prior to the present complaint.
The AJ found that complainant satisfied the first three elements of a
prima facie case of retaliation, in that complainant participated in
protected EEO activity, the selection panel, with the exception of one
member, knew of his prior EEO activity, and complainant was subsequently
denied the promotion to the position at issue in the complaint. However,
the AJ concluded that complainant failed to prove by a preponderance of
the evidence that a causal nexus existed between his EEO activity and
his non-selection. The AJ found complainant's arguments unpersuasive,
as a significant period of time had passed since complainant's prior
EEO activity and the instant non-selection.
Complainant also argued that the selectee had no subject matter experience
and was not as qualified as he for the position at issue. The AJ found
that the facts did not support such a conclusion. The AJ concluded
that a panel of agency experts reviewed the applications and ranked the
applicants, and that while complainant and the selectee were obviously
excellent employees, and both made the best qualified list, there was only
one position. The agency's final decisions implemented the AJ decisions.
On appeal, in complaint no. HCF-362-94, complainant, through his attorney,
contends that the AJ erred when she adopted the agency's recitation
of the facts. Specifically, complainant argued that complainant's
supervisor (S-1) received a $1,500.00 award using the agency's same
internal procedures for a different award year under the same project,
while complainant was only awarded $500.00, and that it was erroneous
for the AJ to issue a summary judgment finding that S-1 was not a proper
comparator because S-1's award was for a different budgetary year.
Further, complainant argued that he was similarly situated to S-1 in
that the regional administrator was responsible for all awards within his
district including the awards to S-1 and complainant. Complainant also
argued that the agency failed to introduce �concrete� evidence that
its budgetary constraints precluded awarding more money than $500.00,
nor did it explain its methodology in calculating the awards.
The agency responded indicating that complainant was not similarly
situated to S-1 in that 1) issuing monetary awards is completely at
the agency's option, and is always dependent upon available funds in
a given fiscal year, and as such, no cross-fiscal-year comparisons
were appropriate; 2) S-1 was a supervisor, complainant was not, they
had different supervisory chains, and their duties and responsibilities
were vastly different; 3) complainant improperly attempts to compare his
special act or service award with S-1's performance-based merit award,
when the awards were in entirely different categories for recognition
deriving from totally distinct systems, each serving a unique purpose.
Further, the agency contended that the by then obsolete FPM simply
provided general parameters for civil service awards, and did not mandate
specific payment amounts or ranges for awards, nor did it require that a
special act/service award be calculated based upon a fixed percentage of
savings realized. Finally, the agency contended that assuming arguendo
that complainant saved the agency $1.25 million, a group of other division
employees saved the agency eight times the amount that complainant saved,
yet only received $500.00 in award money.
On appeal, in complaint no. 97-043-HCF, complainant contends that the AJ
erred when she issued a summary judgment finding that there was no causal
nexus between complainant's prior EEO activity and his non-selection.
Complainant's attorney argued a temporal nexus existed because this
complaint was filed while his other EEO complaints, filed in 1996,
were still pending. Further, complainant's attorney argued that the
selectee was not �clearly more qualified� than complainant as her final
score of 97.3 was only 4.3 points higher than complainant's score of 93.
The agency offered no new contentions on appeal.
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 does not
sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
In complaint no. HCF-362-94, the Commission notes that the record
indicated that other similarly situated employees in complainant's work
unit under the same chain of command, not of complainant's national
origin, both male and female, were given Special Act awards of lesser
amounts or were given no awards in 1993. In addition, some of these
employees realized savings for the agency that were up to eight times
greater than complainant's but they too received $500 awards. Further,
complainant introduced no evidence to show that the agency was required
to give special act/service awards in the amounts suggested in the FPM.
We also concur with the AJ's conclusion that complainant was not similarly
situated to his supervisor for purposes of calculating the awards.
In complaint no. 97-043-HCF, complainant argues that a causal nexus
exists, based on the temporal relation of the events because he
had a pending EEO claim during the selection process. However,
he failed to show that the agency's legitimate non-discriminatory
reason was pretextual, in that he has not shown by a preponderance of
the evidence that he was plainly superior to the selectee, or that the
agency harbored discriminatory animus towards him. In Wrenn v. Gould,
808 F.2d 493 (6th Cir. 1987), the court held that an employer's stated
legitimate reason must be reasonably articulated and nondiscriminatory,
but does not have to be a reason that the trier of fact would act on or
approve. An employer is entitled to make his own business judgments. The
reasonableness of the employer's decision may of course be probative
of whether it is pretext. The trier of fact must understand that its
focus is to be on the employer's motivation, however, and not on its
business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 , n. 6
(1st Cir. 1979). The Commission can not second guess an employer's
business decisions but can focus only on an employer's motivation for
such decisions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). Complainant has not adduced evidence probative
of a pretextual explanation. For instance, complainant has not shown
that the selection process was flawed nor did he cite other events which
rose to the level of retaliatory animus. We note that the record does
not show that complainant's qualifications were so plainly superior to
those of the selectee as to warrant a finding of pretext. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Further, while complainant argued
that the selectee had no subject matter experience for the division she
was applying for, the record indicates that she had similar experiences to
his in relevant areas such as working with government contractors and the
agency's legal counsel on issues concerning Medicare laws; the selectee
similarly was required to engage in technical writing, and identify over
payments and under payments. Moreover, complainant did not show where the
selectee failed to satisfy the requirements of the vacancy announcement.
Therefore, after a careful review of the record, the Commission finds that
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's age, sex or national origin.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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 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 (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
February 21, 2002
______________________________
Date
1The records indicate that complainant filed two prior equal employment
opportunity (EEO) complaints. Specifically, agency complaint
nos. HCF-362-94, the subject of this appeal, and HCF-007-96, which was
previously appealed to the Commission under EEOC Appeal No. 01975757.
An appeal decision finding no discrimination was issued by the Commission
on June 23, 1999 on HCF-007-96.