0120102349
02-03-2011
Noma H. Shaw, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Noma H. Shaw,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120102349
Hearing No. 530-2008-00417X
Agency No. PHI-07-2244-SSA
DECISION
On May 3, 2010, Complainant filed an appeal from the Agency's April
14, 2010, final order 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. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected
to discrimination based on her race and national origin when she was
not selected for one of four positions for which she applied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
non-Federal employee applicant for positions with the Agency's Offices
of Disability Adjudication Review (ODAR) in Elkins Par and Philadelphia,
Pennsylvania. Complainant applied for the positions of Legal Assistant
(Case Technician), Legal Assistant (Senior Case Technician), Senior Case
Technician (Bilingual), and Legal Assistant (Case Technician). At the
relevant time, Complainant, a bilingual attorney, worked as a part-time
representative for claimants who filed applications for disability
benefits with the Agency. She represented claimants on average of three
to four times a year, with each case taking approximately 20-25 hours.
Complainant applied for the Legal Assistant Bilingual position advertised
under vacancy announcement number (VAN) 138957. The Staffing Office
ranked each applicant and a referral list was developed listing the
applicants in descending order. Seven applicants were referred at
the GS-6 level, and ten applicants were referred at the GS-7 level.
Complainant was referred on the GS-7 list with a rating of 96. She was
not referred on the GS-6 list. Complainant was the highest ranking
candidate at the GS-7 level. All of the GS-7 candidates that had not
already been selected for jobs were interviewed. After each interview,
the selecting official rated each candidate on how well they responded
to her questions. The selecting official noted that Complainant did not
do well during her interview. In fact, the selecting official indicated
that Complainant criticized the questions and took offense to certain
questions during the interview. The selecting official selected two
Hispanic applicants, who were ranked fourth and sixth, based on their
responses during their interviews.
Complainant applied for the Senior Case Technician-Bilingual position
VAN 139182. Complainant with a score of 96 was referred on both the
GS-6 and GS-7 lists. The selecting official (S-2) indicated that she
was given eight different vacancy announcements to fill at the same time
and she had made all of the needed selections prior to getting to the
VAN that Complainant was referred on. Complainant also applied for the
Legal Assistant position advertised under VAN 139510. Nine applicants
were referred at the GS-4 level, ten applicants at the GS-5 level and ten
applicants at the GS-6 level. Complainant was referred at the GS-6 level.
The selecting official chose a Caucasian, non-Hispanic from the GS-4
referral list. Complainant acknowledged that race and national origin
were not considered in this selection.
Finally, Complainant applied for the Legal Assistant position advertised
under VAN 143921. A GS-4/5/6 list was developed. Complainant was
referred with a rating of 97 at the GS-4, 5, and 6 levels. The selecting
official (S-3) was required with regard to this position to make a
selection based on the "rule of three," wherein the selecting official is
required to consider the top three referred candidates before considering
the fourth or more referred candidate. The selecting official chose
an African American for the position. She was the number one rated
candidate with a rating of 100 on the GS-5 referral list. Moreover,
the candidate had worked for the agency as a stay in school intern and
S-3 was very impressed with her work.
On October 29, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Caucasian)
and national origin (Caucasian) when:
1. On or about June 2007, she was not selected for the position of Legal
Assistant-Bilingual;
2. On or about June 2007, she was not selected for the position of Senior
Case Technician - Bilingual;
3. On or about July 2007, she was not selected for the position of
Legal Assistant; and
4. On or about July 2007, she was not selected for the position of Legal
Assistant.
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). Complainant
timely requested a hearing. Over the Complainant's objections, the AJ
assigned to the case granted the Agency's March 3, 2009, motion for a
decision without a hearing and issued a decision without a hearing on
March 19, 2010. The AJ found that Complainant failed to show that her
race and national origin were considered with regard to the nonselections.
The AJ also found that Complainant failed to show that the Agency's
articulated, legitimate nondiscriminatory reasons were pretext for
discrimination. In the conclusion of the decision, the AJ however,
mistakenly listed the bases as disability and reprisal and referred
to Complainant as a male. The Agency subsequently issued a final order
adopting the AJ's finding that Complainant failed to prove that the Agency
subjected her to discrimination based on her race and national origin.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that material facts are at issue with
respect to the Legal Assistant VAN 138957 position. Specifically,
Complainant maintains that while the Agency was correct in finding that
she established a prima facie case of discrimination, she argues the
Agency's legitimate nondiscriminatory reason is too vague to be credible.
Complainant maintains that the Agency offered no evidence that supports
its argument that the selectees did better on their interviews than she.
Complainant also asserts that the Agency did not explain why the fourth
and sixth rated candidates were selected for these positions over her.
Complainant also argues that summary judgment should not have been granted
because the Agency did not provide a legitimate nondiscriminatory reason
for why it did not make a selection for one of the positions for which
she applied. Finally, Complainant notes that the AJ made a mistake in
her decision with regard to the bases alleged in her complaint.
In response, the Agency contends that none of Complainant's contentions on
appeal have merit. The Agency also argues that the AJ's error regarding
the bases of this case is immaterial as the AJ analyzed the case with
regard to race and national origin.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
Agency's final action shall be based on a de novo review . . ."); see also
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and Agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on the
legal issue of whether any federal employment discrimination statute
was violated. See id. at Chapter 9, � VI.A. (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").
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 holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., 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). In the instant case, the Commission
finds that the record was adequately developed and no material issues
of fact exists. Therefore, we find that a decision without a hearing
was properly issued in this case.
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, he must first establish a prima
facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once Complainant has established a prima facie
case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is
successful, the burden reverts back to the Complainant to demonstrate
by a prepondeerance of the evidence that the Agency's reason(s) for
its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by
a preponderance of the evidence that the Agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).
Upon review, the Commission finds that even if we assume arguendo that
Complainant established a prima facie case of discrimination based
on race and national origin, the Agency has articulated legitimate
nondiscriminatory reasons for its actions. With respect to issue
number 1, the record indicates that Complainant was not selected for
the position because, according to the selecting official, she did not
do well during the interview. Contrary to Complainant's assertion on
appeal that there was no evidence that the selectees did better than she
during the interview, the record indicates that Complainant criticized the
questions and took offense to certain questions during the interview.
The Commission also notes that Complainant admitted that she found
the questions improbable, and she failed to adequately prepare for the
interview. While on the other hand, the two Hispanic candidates who also
were ranked fourth and sixth, did very well during their interviews and
were selected. Regarding issue number 2, the record shows that S-3 made
selections from eight different lists and by the time that she had gotten
to the list that Complainant was on, all of the positions were filled.
As such, S-3 did not make any selections from the VAN that Complainant
was on.
With respect to issue number 3, the evidence shows that while Complainant
was referred for the position at the GS-6 level, a Caucasian, non-Hispanic
applicant at the GS-4 level was selected. Complainant acknowledged in her
deposition that race and national origin were not considered with this
selection. Finally, with respect to issue number 4, the evidence shows
that S-3 used the "rule of three" for this selection and the selectee
was rated number one with a perfect score of 100. S-3 also indicated
that he had previously worked with the selectee and had high regard for
her work. We find that, other than Complainant's conclusory assertion
that because she is a bilingual attorney she should have been selected
for at least one of the four positions for which she applied, she has not
provided any evidence which suggests that her race or national origin
were considered with regard to these selections. The Commission finds
that Complainant has failed to present any evidence which demonstrates
that the Agency's articulated reasons were pretext for discrimination.
Additionally, with regard to Complainant's assertion that the AJ cited in
the summary of her decision the incorrect bases for the complaint, the
Commission finds that it is clear from the record that AJ analyzed this
case using the correct bases and it is also clear that the misstatement
in the conclusion indicating that the bases at issue were disability and
reprisal was a typographical error, and is immaterial to the outcome of
this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the Agency's
final order finding no discrimination.
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
__2/3/11________________
Date
2
0120102349
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102349