0120081190
07-05-2012
Rafael Arroyo, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Rafael Arroyo,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081190
Hearing No. 160-AO-8159X
Agency Nos. SSA 99-0223; SSA 00-0489
DECISION
On January 2, 2008 Complainant filed an appeal from the Agency's December 7. 2007 final order 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was subjected to sex and reprisal based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative, GS-08, at the Agency's Teleservice Center in San Juan, Puerto Rico. Complainant applied for three positions. When he was not selected for three separate positions, Complainant sought EEO counseling and filed two separate complaints.
Agency No. SSA 99-0223 (Complaint 1)
On March 3, 1999, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII when:
1. he was not selected for a GS-09/11 Claims Representative (CR) position in St. Croix, Virgin Island Field Office, advertised under Vacancy Announcement No. ROII 23-JA; and
2. he was not selected for GS-09/11 CR positions in several district offices in Puerto Rico, advertised under Vacancy Announcement No . ROII 23-B-JA.
Agency No. SSA 00-0489 (Complaint 2)
On August 2, 2000, Complainant filed a second EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII when:
3. he was not selected for GS-105-9/11, Social Insurance Specialist (Claims Representative-CREDO) positions in the Caguas District Office, Puerto Rico and St. Croix District Office, Virgin Islands, advertised under Vacancy Announcement No. ROII 518-00-U.
At the conclusion of each investigation, the Agency provided Complainant with a copy of the Report of Investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing for each complaint.
The Agency filed a motion for Dismissal and in the alternative Summary Judgment on Complaint 1. Complainant responded by filing a Motion for Summary Judgment regarding Complaints 1 and 2. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on October 11, 2007.
The AJ found the following facts with regard to Complaint 1:
Regarding claim 1, the AJ determined that Complainant applied for and was qualified for this position. Eleven (11) positions were filled under this vacancy announcement. Three CR positions within the Mayaguez District Office; three within the Caguas District Office; three within the Ponce District Office and two within the Arecibo District Office. The AJ found that Complainant failed to establish a prima facie case of reprisal regarding the positions in the Caguas, Ponce and Arecibo Districts. The AJ found that those selecting officials, who were also District Managers, were not aware of Complainant's EEO activity as a representative of employees. The AJ found that the concurring official for all the selections was the Area Director, Area IV, San Juan, Puerto Rico (AD). AD knew of Complainant's prior protected EEO activity; but, he merely concurred in the selections made by the selecting officials and did not play an actual decision making role.
With regards to the three CR positions filled within the Mayaguez District Office, the selecting official, District Manager of the Mayaguez District Office (DMM) was aware of Complainant's prior EEO activity. The AJ found that Complainant established a prima facie case of reprisal as to these non-selections in the Mayaguez District Office.
As to all of the non-selections, the AJ found that even if Complainant established a prima facie case, the Agency articulated legitimate reasons for non-selecting the Complainant. With regard to the Mayaguez positions, the DMM stated that due to staffing limitations within her district she only considered those certified candidates who were currently employed within her district. Although Complainant was not considered or selected, she noted that neither were other qualified candidates who were not currently employed within her district.
The AJ found that the District Manager of the Caguas District Office (DMC) stated that compared to the three candidates selected, there was nothing in Complainant's application that stood out. Further, Selectee1 had worked in the Caguas office for approximately three years. The DMC based this selection on personal observations of Selectee1 and his ability to handle complex work.
Selectee2 was chosen for the Humacao office. Selectee2 had previously been employed in a District Office as a Service Representative and was the secretary or development clerk. She had 15-20 years of experience. Selectee3 was selected for Cayey. She had been a CR at Cayey, but resigned due to medical reasons; she returned after her recovery, but no CR positions were available so she was a Service Representative until this selection. Selectee3 had prior CR experience and had performed very well.
District Manager of the Ponce District (DMP) stated that there was nothing distinctive in the Complainant's application. She selected Selectee4 who had been employed in the Ponce Office. She was familiar with Selectee4's performance on a day to day basis and was familiar with her work and potential. Selectee5 was also selected, had previously been her secretary, and was promoted to a SR position which she excelled in. Selectee6 was the local union representative at the Teleservice Center and DMP had worked with him and was impressed with "his meet and deal qualities and his displayed approach to problem solving."
The District Manager of the Arecibo District Office (DMA) selected two CR's. He did not select the Complainant as nothing in his application stood out. DMS considered the SR who had the most seniority at the Arecibo office, Selectee6, to be one of the best qualified certified candidates and he selected her. Selecteee7 was selected for the other position; he was a current GS-l1 CR, as well as a union official, and DMA considered this experience as making him better qualified than the remaining candidates.
The AJ found that it was undisputed that Complainant held a Juris Doctorate degree and had the highest score of 47 candidates on the Best Qualified List. Nevertheless, the AJ found that the Best Qualified List did not contain the ranking score of the applicants. The applicants were listed in alphabetical order showing the date each candidate attained their current grade. The AJ determined that a review of the application packages of the selectees and the Complainant showed that Complainant was well qualified for the position; however, the AJ concluded that Complainant did not demonstrate that his qualifications were so plainly superior to those of the selectees' to show that the Agency's reasons for not selecting Complainant were a pretext for discrimination
With regard to claim 2, the AJ dismissed the claim finding that Complainant failed to timely contact an EEO counselor. Even if Complainant had timely contacted an EEO counselor, the AJ found that the Area IV Area Director said that the Vacancy Announcement was made in anticipation of a vacancy that did not occur. Accordingly, Vacancy Announcement had been cancelled and no selection was made with regard to that position. Again, the AJ found that Complainant failed to demonstrate that the Agency's articulated reasons was a pretext for discrimination.
With regard to complaint 2, the AJ found that the District Manager of the U.S. Virgin Islands (DMUVI), who was also the selecting official for one of the positions, was not aware of Complainant's prior EEO activity and did not personally know Complainant. Accordingly, the AJ found that Complainant failed to demonstrate a prima facie case of retaliation with regard to this position. Nevertheless, the AJ assumed that Complainant established a prima facie case of sex discrimination and reprisal. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, DMUVI stated that he chose Selectee8 based on his long time knowledge of Selectee8; her job performance; her ability to meet and deal face to face with all kinds of beneficiaries; her performance of other duties as assigned; the numerous awards he has given her; and her knowledge and involvement in the culture of the U. S. Virgin Islands community in which she lives.
With regard to the Cauguas positions, among other things, the AJ assumed that Complainant established a prima facie case of sex and reprisal discrimination. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. DMC selected four women for the vacancies he filled. Selectee9 worked in the Caguas Field Office for 19 years; Selectee10 was from the Caguas District, at the Cayey Branch Office for 22 years; Selectee11 worked in the Caguas District for 19 years; and Selectee12 was in the Caguas District for 21 years (ROI II Ex. 17). The AJ found that the DMC in his affidavit gave a detailed explanation as to his reasons for the selection of these four women. All these selections were based on his personal observations of selectees and experience, performance awards, and seniority.
The AJ, again, found that even though Complainant held a Juris Doctorate degree, he failed to show that his qualifications are plainly superior to those of the selectees or that the Agency's reasons for their selections was a pretext for retaliation or sex discrimination. Addressing Complainant's allegations that the selections were are a result of favoritism, the AJ found that these selections were not unlawful under Title VII because Complainant did not demonstrate that the Agency was motivated by prohibited considerations, i.e., his sex or previous EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the final order to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing because she did not based her decision on undisputed facts, erred with regard to the law, and did not resolve issues critical to the outcome of the case. Further, Complainant argues that the AJ did not adequately reconstruct the case file after the events on September 11, 2001. Complainant also argues that the AJ erred in issuing a decision without a hearing because the AJ failed to issue rulings on pending motions and made a determination on an incomplete record. The Agency requests that the Commission affirm the AJ's finding of no discrimination. Further, the Agency argues that the AJ appropriately issued decision without a hearing and properly dismissed claim 2.
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 both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. Although Complainant argues that the record was incomplete and insufficient for the purpose of issuing a decision without a hearing, we do not agree. We find that the record was adequately developed and reconstructed after the events of September 11, 2001, to issue a decision in this case and that no genuine issue of fact exists. Further, we find that even if the AJ did not rule on all the motions pending, the AJ did not abuse her discretion to issue a decision without ruling on all pending motions. Additionally, we find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding.
Preliminarily, we note that allegations of discrimination must be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1). With regard to claim 2, Complainant provided affidavit testimony that he was aware that the Vacancy Announcement had been cancelled soon after he submitted his application for the position. The record reveals that the Vacancy Announcement was cancelled in April 22, 1997. However, Complainant did not contact an EEO Counselor with regard to this claim until July 15, 2009. Complainant has not offered any explanation to justify a waiver the requisite time frames. Accordingly, we find that Complainant did not contact the EEO counselor in a timely matter.
Turning to the remaining claims, we note that to prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination and retaliation with regard to each of the remaining nonselections, we find that the Agency articulated legitimate, nondiscriminatory reasons for each position that Complainant was not selected. In order to prove that he was discriminated and retaliated against, Complainant argues that he was better qualified that those who were selected. One way Complainant can establish pretext is by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). The record reveals that Complainant failed to so do, as articulated by the AJ in her decision. Complainant failed to show that the Agency was motivated by unlawful animus. Further, we find nothing in the record demonstrates that Complainant was subjected to retaliation or discrimination as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ appropriately issued a decision without a hearing finding that Complainant failed to establish that he was discriminated against as alleged.
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
__7/5/12________________
Date
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0120081190
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081190