0120080052
06-28-2011
Paul M. Brown, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Paul M. Brown,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120080052
Agency No. HQ030029SSA
DECISION
On September 5, 2007, Complainant filed an appeal from the Agency’s
final decision 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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it for de novo review, pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUES PRESENTED
(1) Whether the Agency properly dismissed issues (4)-(24) on the grounds
that Complainant raised these matters in a civil action and because the
Commission has previously addressed these issues in prior decisions; and
(2) Whether Complainant has proven that he was subjected to discrimination
with respect to 12 non-selections and the denial of performance awards.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Systems Accountant, GS-510-12, at an Agency facility located in
Baltimore, Maryland. On August 22, 2002, August 23, 2002, and October
24, 2002, Complainant filed EEO complaints (subsequently amended and
consolidated), alleging that the Agency discriminated against him on the
bases of race (white), national origin (Anglo-Saxon), sex (male), age and
reprisal for prior protected EEO activity (under Title VII and ADEA) when:
1. On May 10, 2002, he learned that he did not make the best qualified
list (BQL) for the position of Management Analyst, GS-343-13, which was
posted under vacancy announcement number (VAN) L-l 162 (02-0442-SSA).
1b. He learned that he did not make the best qualified list (BQL) for
the position of Management Analyst, GS-343-13, posted under VAN D-2489
(03-0035-SSA).
2. On May 10, 2002, he learned that he did not make the BQL for the
position of Management Analyst, GS-343-13, which was posted under VAN
D-2482 (02-0448-SSA).
3a. On October 24, 2001, he learned that he would not be promoted to the
position of Supervisory Fiscal Management Analyst, GS-501-13, which was
posted under VAN L-l 152 (03-0035a-SSA).
3b. On August 1, 2002, he learned that he did not make the BQL for the
position of Supervisory Fiscal Management Analyst, GS-501-13, which was
posted under VAN L-l 170 (03-0035b-SSA).
3c. On July 23, 2002, he learned that he would not be promoted to the
position of Systems Accountant, GS-510-13, which was posted under VAN
L-l 165 (SSA-0035c).
3d. He learned he was not promoted to the position of Financial Management
Analyst, GS-501-13, which was posted under VAN L-l 179 (03-0035d-SSA).
3e. He learned he was not promoted to the position of Lead Financial
Management Analyst, GS-501-13, which was posted under VAN L-l 180
(03-0035e-SSA).
3f. He learned he was not promoted to the position of Supervisory
Accountant, GS-510-13, which was posted under VAN L-l 186 (03-0035f-SSA).
3g. He learned he was not promoted to the position of Financial Management
Analyst (Specialist), GS-501-13, which was posted under VAN L-l 175
(03-0035g-SSA).
3h. He learned he was not promoted to the position of Financial Management
Analyst, GS-501-13, which was posted under VAN L-l 177 (03-0035h-SSA).
3i. He learned he was not promoted to the position of Systems Accountant,
GS-510-13, which was posted under VAN L-l 178 (03-0035i-SSA),
3j. He was the subject of harassment (non-sexual) and a hostile work
environment as exemplified by management’s failure to nominate him
for a performance award (03-0035-SSA).
Complainant further claimed that based on his age, national origin, sex,
race and reprisal when:
4. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when SSA violated 29 CFR Part 1607 by performing disparate impact studies
under the Uniform Guidelines on Employee Selection Procedures.
5. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact when SSA’s Affirmative Action Work Force Inventory (AA WFI)
report summarizing the period of September 30, 1989 through September 30,
1993, clearly indicates a statistical case for all promotions. During
that time period only 14.4% of the promotions from grade 12 to grade 13
went to male employees, even though they make up 56.8% o f the eligible
grade 12 employees.
6. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when his Fifth Amendment right to equal protection was violated by SSA’s
usage of an allegedly illegal Affirmative Action Plan (AAP) which was
erected as an illegal barrier for all prior nonselections for promotions.
7. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when SSA has and is pursuing a continuing systemic discrimination policy
on the bases of sex and race against all males and particularly while
males in the personnel areas of hiring, rating, awards and promotions.
8. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when the representative of his choice was declared ineligible to represent
him in EEO proceedings.
9. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
because of the pervasive, systematic discriminatory patterns over the
last 13 years, and he was unable to get fair and equitable counseling
from OCREO.
10. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual,) and disparate impact
when SSA violated the XI18 Classification Standards through the allegedly
ongoing, illegal promotion of females over males.
11. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact because SSA continues to promote while, female employees to the
exclusion and detriment of white, male employees and, therefore, this
action provides evidence that the continuation of the pattern and practice
of systemic discrimination at SSA against white males and him exists;
and, this has resulted in disparate impact and retaliation against him.
12. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
because SSA has been and is pursuing a continuing systemic discriminatory
policy against all males and particularly white males in the personnel
areas of hiring, awards and promotions.
13. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact when SSA created a hostile work atmosphere for him and all male
employees, which resulted in disparate impact as evidenced by his being
denied promotion for 13 years, lowered ratings, and diminished award
amounts. These conditions are reflected in a series of reports issued by
SSA in which SSA officials ignore when data reflecting these conditions
are published in annual reports to the EEOC.
14. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact when SSA deliberately ignored, in violation of 29 CFR Part 1614,
the systemic continuing violation theory while processing his complaints
in an attempt to limit its liability for its illegal conduct against
males for the benefit of females.
15. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when the former Deputy Commissioner for Human Resources kept males from
being hired by SSA and from being promoted in proportion to their pool
eligibility.
16. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when SSA’s Office of Programs (OP) Trend Analysis Report for 1987-1992
clearly shows SSA’s alleged duplicity in claiming that there is a
glass ceiling keeping women out o f t he GS-13 to the GS-15 pay bands.
17. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact because the Associate Commissioner’s staff in the Office of
Financial Policy and Operations (OFPO) is disproportionately staffed
with females; therefore, opportunities for promotions and opportunities
to gain experience for promotions have been reduced for him.
18. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
because the head of OCREO allegedly illegally reports to the Deputy
Commissioner for Human Resources instead of the Commissioner of SSA.
19. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
because the staffing pattern of OCREO does not reflect an equitable
Civilian Labor Force (CLF) staffing pattern but, instead, serves as an
additional discriminatory tactic to discourage white males from filing
EEO complaints.
20. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when a former Commissioner, through her support of the above pervasive,
systemic discriminatory policies and conduct, continued the hostile
employment atmosphere for males in SSA and, thereby, kept him from being
promoted and receiving his meritoriously earned share of financial awards.
21. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when several letters from SSA officials (letter dated September 8, 1997,
to the Commissioner; letter dated January 18, 1991, from the Deputy
Commissioner; and letter dated September 29, 1991, from the Acting Deputy
Commissioner demonstrated that in 1997, temporary promotions to GS-13
were unfairly bestowed upon minorities and women to his detriment. Also,
in 1991, SSA told lesser management officials that a failure to show
minority gains would result in corrective action.
22. He was subjected lo a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate
impact when SSA violated 29 CPR Part 1614.102(a)(2) by issuing all
encompassing declarations and orders which served to deprive individuals
of their rights to representation with their filing and prosecuting EEO
complaints. This violation denied the provision for prompt, fair and
impartial processing of complaints. This violation reflects retaliation
against him.
23. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
because he has been a victim of lower ratings and lesser awards since
1983, which reflects a pattern and practice of giving female employees
the majority of the outstanding ratings so that they could make the best
qualified lists and be promoted over him and other more experienced males.
24. He was subjected to a continuing pattern of systemic discrimination,
a hostile work environment, harassment (non-sexual), and disparate impact
when males in general, and he and other Anglo-Saxon unnamed males in
particular, received diminished award amounts and award opportunities.
Complainant requested a hearing, and the complaints were assigned to an
Administrative Judge (AJ). At this time, Complainant also had other
complaints pending before other Administrative Judges. The parties
subsequently entered into a Joint Stipulation wherein they agreed to the
dismissal of the hearing requests pertaining to several of Complainant’s
pending cases including the instant complaints. Subsequently, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Final Agency Decision
The Agency dismissed issues (4) through (24), pursuant to 29 C.F.R. §�
�1614.l07(a)(3) because, among other things, Complainant previously had
filed Civil Action S99 CV3798 in U.S. District Court for the District of
Maryland on December 21, 1999 regarding these same matters. The Agency
noted that on July 17, 2001, the Court entered judgment in favor of
the Agency.
With respect to issues (1) – (3j), the FAD found as follows:
1. VAN L-1162
The record indicated that of the 19 applicants who made the BQL, there
were 6 white males over the age of 40, all of whom were older than
Complainant; 5 white females, over the age of 40, all of whom were older
than the Complainant; and one white female who was under the age of 40.
The record indicated that a panel determined who made the BQL.
The Financial Management Analyst, GS-13, Office of Financial Policy and
Operations (Anglo-Saxon, female, over the age of 40) indicated that
Complainant had a strong educational background, but that they could
not rate him on two of the rating factors: B (systems security) and D
(negotiating with employees and managers) because Complainant did not
seem to have that background. Complainant only received a score of 65
out of a possible 120.
1b. VAN D-2489
As to the claim of not making the BQL for the position of Management
Analyst, GS-343-13, posted under VAN D-2489, the record indicated that
of the 8 applicants who made the BQL, there were 4 white males, over the
age of 40, all of whom were older than Complainant; one white female,
who was over the age of 40, but younger than Complainant; and one white
female who was under 40; one black female, who was over the age of 40, but
younger than Complainant; and one black female who was under the age of 40
The Management Analyst, GS-13, DCFAM (white, Caucasian, male, under the
age of 40) indicated that in looking at Complainant’s application,
he, along with the other panel members, found that Complainant lacked
basic experience for the Management Analyst job. Because Complainant
did not satisfy the experience factors, they were not able to award
him the necessary points to make the BQL. Specifically, he added that
Complainant did not state that he had experience at the Associate
Commissioner Office level or above, which was required to meet the
minimal level of experience necessary to make the BQL.
2. VAN D-2482
As to the claim of not making the BQL for the position of Management
Analyst, GS-343-13, which was posted under VAN D-2482, the record
indicated that of the 15 applicants who made the BQL, there was one white
male, over the age of 40, who was older than Complainant; one white male,
who was under than the age of 40; 7 white females, over the age of 40,
all of whom were older than Complainant; 5 black females; and one American
Indian female who was over the age of 40, but younger than Complainant.
The Executive Officer, GS-14, Office of Facility Management (OFM), (white,
Anglo-Saxon, male, over the age of 40) testified that the panel reviewed
27 applications, including Complainant’s. Applicants had to address
factors A-C, and there were additional points that could be obtained
for training and awards. The Executive Officer indicated that the
panel had a rule that if the applicant’s materials did not reflect the
experience or quality sought in the factors, he/she would not get points.
He remembered Complainant’s application because it was very thick. He
recalled that it looked as if Complainant wrote down everything that he
had ever done, without specifically trying to respond to the factors.
Nevertheless, Complainant received all available points for factors
A-C and five points for training, for a total of sixty-five. He added,
however, that a score of seventy was needed for the BQL, but the panel
did not know this ahead of time. He stated that Complainant fell short
because of a lack of points for awards.
3a. VAN L-l152
The Director of the Office of Finance, GS-15 (white, Anglo-Saxon, male,
over the age of 40) stated that after the BQL was issued, he and two
others interviewed the candidates. He acknowledged that there were six
persons on the BQL and two reassignment candidates, who did not have to
go through the competitive process. He explained that they interviewed
each candidate based upon a pre-established set of questions pertinent
to the job. He stated that based upon his experience, the Selectee
(white, male, 36) was far and away the most qualified candidate. He
noted that the Selectee had directed the same type of organization for
the Department of Motor Vehicles for the State of Maryland. He contended
that the Selectee had a strong finance and accounts payable background,
managed a finance operation, and had strong technology skills, which
were a good fit for the position. He maintained that Complainant did
not have the management experience, and much of his work or projects
seemed to be individual, not group efforts. He stated that Complainant
did not have the technology training and skills that the Selectee did,
and those skills would be invaluable in implementing the new software.
3b. VAN L-l170
As to the claim of not making the BQL for the position of Supervisory
Fiscal Management Analyst, GS-501-13, posted under VAN L-l170, the record
indicates that of the 5 applicants who made the BQL, there were 2 white
males, over the age of 40, both of whom were older than Complainant;
one black male, under the age of 40; one black male, over the age of 40
and older than Complainant; and one black female under the age of 40.
The Lead Fiscal Management Analyst, GS-13, Division of Travel
Management (DTM) (white, Anglo-Saxon, female, over the age of 40)
stated that Complainant’s application did not reflect enough skills
and experience needed to rate him high enough for the BQL. She recalled
that Complainant did not mention any independent writing, which was one
of the requirements, and generally did not meet many of the standards
set forth in the rating factors.
3c. VAN L-l165
The Director, GS-15, Office of Financial Policy and Systems Design (OFPSD)
(white, Anglo-Saxon, female, over the age of 40) stated that unlike the
Selectee (Black, female, over 40, but younger than Complainant) who had
significant experience on compiling the Performance Accountability Report
(PAR) project or jobs associated with it, Complainant had no pertinent
experience, as he has never worked on any part of this project or
its components. The Director indicated that Complainant produced very
little work, and did not generate many written or original documents.
She described Complainant as not being a self-starter, someone who never
initiated any work more than the task he was assigned, and someone who
rarely completed projects on time. She indicated that the PAR required
very strict deadlines. She felt that Complainant had little or no
demonstrated experience in managing the tasks and teams associated
with a project of this size and complexity. She stated that the PAR
required interaction and team building with a number of other divisions
and components of SSA, which the Complainant had never demonstrated.
3d. VAN L-1179
The Director, Office of Finance (white, Anglo-Saxon, male, over the
age of 40) indicated that the Selectee’s (white, female, older than
Complainant) experience and knowledge made her the best candidate
for this position. The selectee had experience in payment operations,
including the implementation of automated systems, demonstrated excellent
communication skill, and also had prior management experience. He pointed
out that Complainant did not have the comparable experience and knowledge,
nor did he have experience in implementing automated systems.
3e. VAN L-1180
The Director, Office of Finance (white, Anglo-Saxon, male, over the age
of 40) indicated that the Selectee (white, female, 33) had extensive
experience in accounting and financial reporting and clearly demonstrated
her superior analytical and communication skills on the many projects
and government-wide workgroups for which she represented SSA. He claimed
Complainant did not have comparable experience, especially in financial
reporting, and did not match the Selectee’s strong analytical and
communication skills.
3f. VAN L-l186
The Director, GS-15, Division of Central Accounting and Reporting (DCAR);
(white, Anglo-Saxon, male, over the age of 40) stated that the selectee
(black, female, over 40) based upon her experience and interview, was
clearly the best candidate. He pointed out that her responses to the
interview questions were almost perfect, and she expressed enthusiasm for
the work and the role of being a supervisor. He noted that she had been
a group and team leader in other positions in the past and had excelled
in these jobs, according to her references and his personal observations.
He maintained that Complainant’s interview was average. He indicated
that Complainant did not seem to be enthusiastic about the opportunity
to be a supervisor. He noted that although Complainant was a CPA,
he did not have the same degree of direct accounting experience as the
Selectee, nor did he have the same familiarity with SSA’s accounting
system and interpreting the numerous reports it produces. He pointed
out the Complainant’s resume was unusually long and wordy, and at
times hard to follow. Finally, he noted that communication skills and
the ability to be concise and direct were vital to the position, as one
must deal regularly with subordinates and other business components,
and must be able to communicate effectively. He claimed the Complainant
did not appear to have that ability.
3g. VAN L-l175
The Director, GS-15, Division of Financial and Administrative Systems
(DFAS) (white, Anglo-Saxon, female, over the age of 40) stated that the
selectee (black, male, over 40) had already demonstrated that he was
experienced in Agency-wide systems development, had been an operating
accountant in the past, was knowledgeable about SSA hardware and software
infrastructure, and had developed reports for the payroll accounting
system. She contended that another factor was that the Selectee had
a very good working relationship with customers of the current payroll
accounting system, and was a consensus builder. She noted that based
upon her familiarity with Complainant’s background and work experience
through his resume and interview, she did not believe he possessed the
requisite skills necessary to perform the position. She acknowledged
that the Complainant did have a CPA and knowledge of accounting, but
claimed he had no in-depth systems technical experience.
3h. VAN L-1177
The Director, DFAS (white, Anglo-Saxon female, over age 40) indicated that
the Selectee (white, female, over 40) for the Financial Management Analyst
position had experience in validation and implementation of Agency-wide
financial management and accounting systems. She also had experience in
coordinating internal and external components during the implementation
of financial management and accounting systems. The Director added that
the Selectee had contract management experience with major, multi-million
dollar contracts and the preparation of executive-level presentations
and briefings. These contracts included the Financial Interactive Voice
Response System (FIVR), the Managerial Cost Accounting System (MCAS)
and the Replacement FACTS (rFACTS). The selectee, she maintained,
had demonstrated an ability to work independently in writing, reviewing
and evaluating requirements, and that she had outstanding communication
skills. Although Complainant had a CPA and knowledge of accounting,
he had no in-depth systems technical experience or contract management
experience regarding major multi-million dollar contracts. According to
the Director, she had no hesitation in stating that that Complainant
did not possess the skills necessary to succeed in the position.
3i. VAN L-1178
The Deputy Director, DFAS (white, Anglo-Saxon male, over age 40) indicated
that the Systems Accountant selectee (white, male, over 40) was chosen for
this position because he had performed the same job, at the GS-12 level,
for a number of years. Therefore, he understood the user requirements,
the business and accounting flows and functions, and has designed and
implemented accounting software systems. The Deputy Director did not
believe any of Complainant’s experience included hands-on work with the
SSA accounting systems, system design, etc. He added that Complainant has
little or no experience on the technical side working with those systems.
3j. Awards
With regard to claim that Complainant was subjected to harassment
(non-sexual) and a hostile work environment as exemplified by
management’s failure to nominate him for a performance award,
Complainant testified that the Agency has a hidden policy of retaliating
against employees who file EEO complaints and that the Agency keeps
illegal lists of people who file these complaints. He claimed that he
has been subjected to systemic discrimination in the area of awards and
believed that he did not receive an award under the Office of Finance,
Assessment and Management Headquarters Component Partnership Council.
He noted that he has not received an award from the Agency in over
24.5 years
The Director, DFPSD (Office of Financial Policy and Systems Design)
stated that Complainant’s work simply did not rise to a level that
deserved an award. He noted the Complainant’s work was satisfactory,
but he rarely ever made an effort to improve his performance or to go
beyond the outlined requirement. He added the Complainant did not devote
the effort to his duties that might have qualified him for an award.
Specifically, in 2001 - 2002, CASA, On-The-Spot (OTS) and Time Off
award recipients were selected by A-1 (white, Anglo-Saxon, male, under
the age of 40), Management Analyst, GS-14, and A-2 (African-American,
female, over the age of 40), Systems Accountant, GS-13. They both denied
Complainant’s allegations of discrimination. A-2 stated that in 2002,
she and A-1 were charged with selecting recipients for the OTS, CASA,
and Time-Off awards. She stated there were two rounds of selections
in 2002, one in March and the other in the August. She indicated that
out that there were 12 employees who were eligible for these awards,
including Complainant.
A-2 further explained that in March 2002, she and A-1 were notified
about the nominations and provided instructions for selections,
including criteria for the selections. She added that she sent out
e-mails and personally distributed this information to managers and
employees interested in nominating others or themselves. She noted
only two employees were nominated, C-1 and C-2. She contended that the
Complainant was not nominated by others or himself. She contended that
after reviewing C-1 and C-2’s application against the criteria, they
were chosen for awards, with C-1 receiving a CASA award and C-2 an OTS
award. A-2 indicated that C-1 is a white female who was under the age
of 40, and C-2 is a black male who was over the age of 40.
According to A-2, in July 2002, there was another round of selections
with the same process being followed. She noted that there was only
one self nomination, i.e., a female employee on behalf of herself. She
and A-1 went through each of the nominations. She contended that she
asked managers for input. Subsequently, they chose C-1, C-2, C-3, C-4,
C-5, and C-6 for awards. She testified that C-3 is a white male over
the age of 40; C-4 is a white male under the age of 40; C-5 is a white
female under the age of 40; and C-6 is a black male over the age of 40.
A-2 indicated that Complainant did not have anything remarkable about
his work, or did not demonstrate anything in his effort which showed
him “going beyond the call,” which would make him worthy of an
award. She pointed out that he did not even nominate himself. Finally,
she maintained that she was not aware of Complainant’s past EEO claims
until the EEO Investigator brought that to her attention.
CONTENTIONS ON APPEAL
Complainant, in pertinent part, contends that issues were improperly
dismissed from his complaints. Additionally, he maintained that he
satisfied the Title VII requirement of proving that he was discriminated
against based on age, sex, race, national origin, and retaliation for
his filing prior EEO complaints. In support of his contention that
reprisal occurred, he reiterates the claim that the former “Director,
Office of Civil Rights and Equal Opportunity (OCREO) . . . . discriminated
and retaliated against him by interfering with his EEO rights when the
Director made remarks at a conference of the Denver Hispanic Affairs
Advisory Committee, such as, but not limited to, the following: a person
who files a complaint against the agency is ‘kissing [his/her] career
goodbye’; ‘filing a complaint is very expensive because the agency
will ‘fight like hell’; winning had nothing to do with the merits of
the complaint; and ‘a complainant better hire a lawyer because he/she
is taking on the Federal government.’”
ANALYSIS AND FINDINGS
Procedural Dismissals
Initially, we AFFIRM the procedural dismissals of issues 4 - 24 as
they were previously addressed by the Commission in prior decisions.
EEOC Regulation 29 C.F.R. § 1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
In Brown v. Social Security Admin., EEOC Appeal No. 01A14629 (January
10, 2003) request for reconsideration denied, Request No. 05A30481
(March 13, 2003); and Brown v. Social Security Admin., EEOC Appeal
No. 01A15254 (January 28, 2003) request for reconsideration denied,
Request No. 05A30533 (September 11, 2003), the dismissal of these claims
were affirmed because they were raised in Complainant’s civil action
referenced above.1
We further note that Complainant’s continuing violation claim has
also been addressed by this Commission. In EEOC Appeal No. 01A15254,
the Commission specifically stated that:
[T]o the extent Complainant claims the Agency is involved in a continuing
pattern and practice of discrimination; he has repeatedly raised
these issues, both as a class member and an individual. See Bostron,
et al. v. Apfel, 104 F. Supp. 2d 548 (D. Md. 2000), affirmed in, 2
Fed. Appx. 235 (4th Cir. January 18, 2001), cert. den. 122 S. Ct. 218
(October 1, 2001); Brown v. Apfel, Civil Action No. 99-3798 (D. Md. July
17, 2001). Complainant's repeated use of the same reports and statistical
evidence that has been rejected numerous times and is no longer current
borders on an abuse of the EEO process. Complainant provides voluminous,
repetitious claims, frequently repeating the entire text of irrelevant
decisions and prior complaints. Any future use of these claims,
and attempts to overburden the process with large amounts of useless
documentation, may be considered a misuse of the EEO process.
Issues (1)-(3j)
The allocation of burdens and order of presentation of proof in a Title
VII or ADEA case alleging disparate treatment discrimination is a three
step procedure: Complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and Complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Assuming, for the purposes of analysis only, that Complainant established
prima facie cases of discrimination with respect to all of his alleged
bases, we find that the Agency provided legitimate, nondiscriminatory
reasons for each of its actions set forth in issues (1) – (3j).
The Agency’s explanations are specific, clear, and individualized;
furthermore, they are set forth with sufficient clarity so that
Complainant was provided with a full and fair opportunity to demonstrate
pretext. See Burdine, supra.
Upon review of the record, however, we find that Complainant did not
meet his burden. There is no dispute that Complainant simply did not
have the type of experience that management deemed relevant for theses
positions nor did he meet the criteria for an award or was not nominated
in some cases. Employers have broad discretion to set policies and carry
out personnel decisions, and should not be second-guessed by a reviewing
authority absent evidence of unlawful motivation. Burdine, 450 U.S. at
259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January
16, 1997). We simply find no persuasive evidence that Complainant’s
race, sex, age, national origin or previous EEO activity played a role
in his non-selections or the failure to receive an award. Finally,
although Complainant contends that his education and experience were
superior to the Selectees, for the reasons set forth above, we find that
Complainant has not shown that the disparities in qualifications between
him and the selectees are “of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have
chosen the [selectees] over [him] for the job[s] 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).
Complainant repeatedly maintained that his non-selections were due to
the Agency’s need for a female or minority individual to “occupy the
grade 13 position in accordance with SSA’s “Affirmative Employment
Program (AEP) Plan.” We find no credible or persuasive evidence to
support these assertions other than Complainant’s often repeated but
rejected claims that he has been subjected to a “continuing pattern
of systemic discrimination.”
Regarding Complainant’s contention that he was subjected to a hostile
work environment with respect to issue 3j, we find, under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that
Complainant’s claim of hostile work environment must fail. See EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is
precluded by our determination that Complainant failed to establish that
the actions taken by the Agency with respect to the failure to provide him
with an award were motivated by discrimination or retaliation. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Finally, with regard to the matter raised on appeal concerning remarks
made by the former Director of OCREO at a conference in Denver, our
records indicate that these comments occurred on April 23, 1994, 8 years
before Complainant filed the complaints at issue here.2 We simply find
no persuasive evidence that, 8 years later, these 1994 comments played
any role in the Agency’s actions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
___6/28/11_______________
Date
1 The following were the claims that we dismissed in EEOC Appeal
No. 01A14629:
6. The agency has been and is pursuing a continuing systemic
discriminatory policy against all males and particularly white
males in the following personnel practices: hiring, ratings, awards,
and promotions. Complainant is specifically attacking the overall
discriminatory patterns and practices against males and these have
affected complainant’s career … [creating] a hostile employment
atmosphere for himself and all male employees and has resulted in his not
being promoted, [having his ratings] lowered, and [receiving] diminished
award amounts for over 13 years. The agency’s ongoing, illegal
promotion of females over males has violated the X118 Classification
Standards. Complainant also was subjected to hostile discriminatory sexism
exhibited by the [former] Deputy Commissioner for Human Resources …
in the telling of a degrading, sexist joke at the Diversity Conference
held in Miami, Florida, on June 20, 1996.
7. Complainant was denied his representative of choice.
8. Complainant is unable to receive fair and equitable EEO Counseling.
9. Complainant was not seriously considered for the OPIR Career
Development and Enrichment Program and the Mid-Level Management Program
while he was an OPIR employee.
10. The agency violated EEOC Regulations by not having their EEO
Director under the immediate supervision of the agency head, and by
allowing the agency official responsible for executing and advising on
personnel actions also manage, advise, and oversee the EEO pre-complaint
[or EEO Counseling] process.
2 See Torrez v. SSA, EEOC Request No. 05950947 (March 10, 1998).
In Torrez, the complainant in that case was present at the conference when
the remarks were made and either had complaints pending or had recently
received decisions from the Agency. Therefore, the Commission found
the comments to be an interference with the EEO process and remanded
the complaint for investigation.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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