0120112063
07-29-2011
Randolph E. Schum, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Randolph E. Schum,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112063
Agency No. KC100522SSA
DECISION
On February 28, 2011, Complainant filed an appeal from the Agency’s
February 2, 2011, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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 pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
Whether or not Complainant was discriminated against on the basis of age
(61) when, on April 16, 2010, his request for a reassignment was denied.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Administrative Law Judge (AJ) at the Agency’s Office of Disability
Adjudication and Review (ODAR), Social Security Administration (SSA)
facility in Creve Coeur, MO.
On May 24, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of age (61) when his
request for reassignment to the Agency’s Fayetteville, NC Hearing
Office was denied.
The Master Agreement between the Agency and the AJ’s union governs
the reassignment of AJs. The record shows that there are two different
policies, depending on the experience level of the AJ. The Master
Agreement, in Article 20, section 2C, states that AJs with less than
twenty-four months of continuous service are not eligible for a voluntary
reassignment unless there is a hardship situation. However, on May 31,
2009 and June 4, 2009, the Agency’s Chief AJ informed all AJs by email
that the Agency and the union had agreed to waive section 2C and follow
the Office of Personnel Management’s (OPM) policy that only requires a
90 day waiting period. The record shows that this email did not mention
this waiver affecting any other parts of section 2. Section 2I states
that once an AJ has accepted a voluntary reassignment, he or she will
not be eligible for another reassignment for two years. Therefore,
an AJ who has just started working with the Agency will presumably be
placed into his or her first assignment, and then must wait 90 days
before requesting a reassignment.
Complainant takes issue with this policy change. Complainant emailed
the Chief AJ on February 3, 2010, asking if the Chief AJ would give
consideration to “applying Article 20 equally to all the judges.”
This email indicates that he wanted the policy to be that all AJs would
only have to wait 90 days before requesting a transfer. He also stated
that he felt the policy was unfair to “older and more experienced
judges.” The Chief AJ responded on February 10, 2010 stating that
the 90 day policy did apply to all judges and that the two year wait
period was no longer being used. The Chief AJ explained during the
investigation that he believed Complainant was referring to the two year
period in section 2C, not section 2I. He responded again to Complainant
later in the day on February 10, 2010 and stated that his previous email
was referring to the “initial transfer of judges” and that the Agency
was not abandoning the two year wait period for repeat transfers.
Complainant started working for the Agency on June 15, 2005, when he was
appointed to the Hearing Office in Paducah, Kentucky. It appears from
the record that he did not stay there for two years, but transferred
to Creve Coeur, MO in August 2006. In October 2008, he was assigned
to a management position in Oakland, CA. Affidavits of the Chief AJ
and the Acting Deputy Chief AJ state that because this position was
in management, Complainant’s transfer was not governed by the Master
Agreement and he was thus allowed to transfer back to Creve Coeur after
one year, instead of following the two year requirement of section 2I.
Complainant returned to Creve Coeur in November 2009. On February 10,
2010, Complainant requested to be placed on the reassignment register
for Fayetteville, NC. On March 25, 2010, he received a letter from the
Office of the Chief AJ stating that this would occur. However, another
letter was sent on April 16, 2010, in which the Acting Deputy Chief AJ
informed him that the first letter had been in error pursuant to Article
20 of the Master Agreement and that he could not transfer until he had
been in his position for two years.
Complainant argued that this policy of not letting AJs who had
already received a transfer to transfer again for another two years,
while AJs who have not transferred before only have to wait 90 days
discriminates against older AJs. He stated in the investigation that
it was discriminatory that an AJ who is under 40 years old (AJ 1) was
allowed to transfer to a new assignment after 90 days, while he was not.
The Chief AJ and the Deputy Chief AJ both stated that this difference
was because AJ 1 was new to the Agency and had not previously requested
a new assignment, while Complainant had to follow section 2I because
he had requested a voluntary transfer to Creve Coeur. Neither knew of
a situation in which they had approved any reassignment without that
AJ staying for two years in that position unless it was for a first
reassignment, although Complainant contests this. Complainant and the EEO
investigator also apparently discussed a hypothetical situation in which
a 35 year old AJ received a transfer and then requested another transfer.
The Report of Investigation (ROI) states that Complainant agreed that that
AJ would have to wait two years before requesting another reassignment.
Data obtained during the investigation shows that of the transfers that
occurred in that year, four were older or the same age as Complainant and
four, including AJ 1, were younger. The record does not show whether or
not these transfers occurred under the OPM policy for new AJs or section
2I for experienced AJs.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right
to request a hearing before an EEOC Administrative Judge (AJ). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant makes a number of contentions on appeal. He argues that the
Chief AJ “unilaterally” limited the 90 day period to new judges and,
by taking back his first email, “acknowledged that the only method to
avoid any discriminatory effects is to apply the 90 day rule “equally
to all judges.” He also argues that the fact that his assignment in
Oakland only lasted a year shows that the “only remaining basis for
denying the claimant access to the transfer register was the age of the
claimant.” He also makes a number of claims of retaliation on appeal.
The Agency argues on appeal that Complainant did not make out a prima
facie case of age discrimination because AJ 1 was not similarly situated
to him, as she was a new AJ. The Agency also argues that no Agency
official has shown any discriminatory intent and, even assuming he has
established a prima facie case, Complainant has not shown the Agency’s
reasons for denying his transfer were pretext for discrimination.
The Agency also argues that Complainant has not provided any statistical
evidence that the Agency’s policy disproportionately affects older
workers and thus cannot make out a disparate impact claim.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (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”).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. § 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the outcome."
Id.
To establish a prima facie case of disparate treatment on the basis
of age, Complainant must show that he or she (1) had membership in the
group of persons protected under the ADEA (i.e, persons age 40 or over);
(2) was subjected to an adverse employment action concerning a term,
condition, or privilege of employment; and (3) was treated differently
than similarly situated employees outside her protected class, or there
is some other evidentiary link between membership in the protected class
and the adverse employment action. McCreavy v. Department of Defense,
EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Department of the
Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Security
Administration, EEOC Appeal No. 0120093260 (Oct. 22, 2009).
We find that Complainant has not established a prima facie case of
disparate treatment on the basis of age because he was not similarly
situated to AJ 1. The Commission has held that differences in
experience level and seniority show that two employees are not
similarly situated. See Ward v. United States Postal Service, EEOC
Appeal No. 0120065313 (June 20, 2008) (describing how there could be
“no meaningful comparison” between a postal clerk with seniority
and a probationary employee); Peters v. United States Postal Service,
EEOC Appeal No. 01960567 (July 21, 1997) (stating that the complainant
and another employee were not similarly situated because they had
different experience levels). In the instant case, AJ 1 was a new AJ
on her first transfer, not an AJ in the same situation as Complainant,
who had already had multiple voluntary transfers. Although Complainant
plainly desires to be able to move to a new assignment and then transfer
again after 90 days instead of waiting two years, he is simply not in
the same situation as a new AJ. Furthermore, Complainant has not shown
any evidentiary link between membership in the protected class and the
adverse employment action – in fact, he has consistently conflated
age with experience level, while even admitting to the investigator that
a new AJ who was not in the protected class would still have to follow
the two-year, section 2I rule after receiving his or her first transfer.
Complainant also implies on appeal that he is making a disparate
impact claim. To establish a prima facie case of disparate impact, the
complainant must show that an agency practice or policy, while neutral
on its face, disproportionately impacted members of the protected class.
This is demonstrated through the presentation of statistical evidence
that establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
994 (1988) (the complainant must present "statistical evidence of a
kind and degree sufficient to show that the practice in question has
caused the exclusion"). Specifically, complainant must: (1) identify
the specific practice or practices challenged; (2) show statistical
disparities; and (3) show that the disparity is linked to the challenged
practice or policy. Id. The burden is on the complainant to show that
"the facially neutral standard in question affects those individuals
[within the protected group] in a significantly discriminatory pattern.
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines
v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).
We find that Complainant has not presented sufficient statistical evidence
to show that there is a disparity in treatment linked to the challenged
policy. In fact, Complainant has not provided any statistical evidence
at all, and only points out that there are two AJs under 40 years of age
(AJ 1 and another) who were allowed to transfer after 90 days, without
stating whether or not these judges were subject to the OPM rule or
the section 2I rule. He has not met his burden to show this is a
statistically significant disparity in the treatment of older judges
and that any disparity is linked to the transfer policy. See Strawn
v. General Services Administration, EEOC Appeal No. 01943187 (June 20,
1996) (stating that complainant’s evidence that the two black branch
chiefs were classified as GS-12s, while the other, white branch chiefs
were classified as GS-14s was not sufficient to show a link between this
alleged disparity and the policy in question).
As for Complainant’s allegations of retaliation made in his appeal
brief, we find that these new claims were not previously raised by
Complainant and it is inappropriate for Complainant to raise them for
the first time on appeal. See Dobbins v. United States Postal Service,
EEOC Appeal No. 0120111389 (June 10, 2011).
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 FAD 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
July 29, 2011
__________________
Date
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0120112063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112063