0120111064
09-10-2012
Robert L. Jackson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Robert L. Jackson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111064
Hearing No. 531-2009-00180X
Agency No. OCO-08-0041
DECISION
Complainant timely filed an appeal from the Agency's 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
� 621 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.
ISSUES PRESENTED
The issues presented on appeal are: (i) whether the EEOC Administrative Judge (AJ) properly issued a summary judgment decision; and (ii) whether the AJ correctly found that the Complainant did not establish that the Agency discriminated against him on the bases of race, sex, and age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Benefit and Earnings Technician, GS-7, at the Agency's Office of Central Operations (OCO), under the Office of Disability Operations (ODO) in Baltimore, Maryland. Report of Investigation (ROI), at 1. On January 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (46) when:
1. he was not selected for a Legal Assistant position under Vacancy Announcement No. R-3826 located in the Agency's Office of Disability Adjudication and Review;
2. he was not selected for a Legal Assistant position under Vacancy Announcement No. R-3819 located in the Agency's Office of Disability Adjudication and Review; and
3. he did not receive any type of 2006-2007 exemplary contribution or service award for the period covered effective August 5, 2007, and issued in August 2007.
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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 2, 2009, motion for a decision without a hearing on September 23, 2010, and entered judgment in favor of the Agency. 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.
AJ's Decision Vacancy No. R-3826
With respect to Vacancy Announcement No. R-3826, the AJ found that Complainant failed to establish a prima facie of discrimination based on his race or age. The AJ noted that both the selectee and Complainant are African-American. The AJ also noted that Complainant admitted that he did not include his age, sex, or race in his application, and that neither the Recommending Official (RO) nor the Selecting Official (SO) knew him during the selection process. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for choosing the selectee for the position. The AJ noted that the RO and the SO were looking for a candidate with the understanding of the overall disability process, which was relevant for the position. The AJ noted that the selectee received the highest amount of points from the selection committee based on the criteria listed in the vacancy announcement. With regard to pretext, the AJ noted that while Complainant was qualified for the position, he failed to establish that his qualifications were "plainly superior" to those of the selectee.
AJ's Decision Vacancy No. R-3819
Regarding Vacancy Announcement No. R-3819, the AJ found that Complainant failed to establish a prima facie case of discrimination based on race and sex. The AJ noted that both the selectee and Complainant are of the same race and sex. The AJ also found that Complainant failed to establish a prima facie case based on age. The AJ noted that the selectee was only six years younger than Complainant, which is insignificant to establish a prima facie case. The AJ further found that the Agency established legitimate, nondiscriminatory reasons for the choosing the selectee. The AJ noted that the selectee was a Contract Representative, GS-08, and had received several awards. The AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
AJ's Decision 2006-2007 Award Period
With respect to Complainant's claim that he did not receive an award for the 2006-2007 period, the AJ again found that Complainant failed to establish a prima facie case of discrimination. The AJ noted that two recipients of awards were African American, one recipient was 15 years older, and one was the same sex as Complainant. The AJ noted that Complainant admitted that he did not do any special projects, which merited an award for the period.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his representative, contends that he will be able to establish pretext at a hearing. Complainant contends that the Agency's deputy associate commissioners have acted improperly with respect to many Agency nonselections. Complainant contends that the Agency has a history of not selecting candidates for positions based on age.
STANDARD OF REVIEW
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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 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 Chap. 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").
ANALYSIS AND FINDINGS
Summary Judgment
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).
After a careful review of the record, we find that summary judgment was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was give the opportunity to respond, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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). He must generally 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). The prima facie inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. 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); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to Vacancy Announcement No. R-3826, management explained that there were over 50 candidates who made the best-qualified list for the vacancy, and the selection panel scored the selectee higher than Complainant. ROI, at 9. Management explained that the Agency was looking for someone with an understanding of the overall disability appeals process. Id. at 8. Regarding Vacancy Announcement No. R-3819, management explained that there were approximately 20 to 30 candidates who made up the best-qualified list. Id. at 11. Management explained that the selectee for the position was chosen because the selectee's application was neat, well-written, and free of grammatical errors. Id. Management explained that the selectee was very knowledgeable about the Agency because he worked at the teleservice center. Id. With respect to the 2006-2007 awards period, management explained that when Complainant did understand something, staff would have to do one-on-one training with him. Id. at 13. Management further explained that Complainant was not performing his assignments in the proper order. Id. Management also explained that the Agency module consists of more than 40 employees and only approximately 11 received awards. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. 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).
Notwithstanding Complainant's contentions to the contrary, we can find no evidence of pretext here. The record does not reflect nor does Complainant contend that his qualifications were plainly superior to the selectees for the two vacancy announcements. We note that the selectee for Vacancy Announcement No. R-3826, was African-American, female, and 39 years of age. Id. at 14. We also note that the selectee for Vacancy Announcement No. R-3819 was African-American, male, and 40 years of age. As such, the selectees were of the same protected classes as Complainant. Id. While Complainant may have been older than the selectees, he failed to establish that the selectees were substantially younger than he. See Bakken v. Dep't of Transportation, EEOC Appeal No. 0120093529 (Aug. 8, 2011); Morecroft v. U.S. Postal Serv., EEOC Appeal No. 0120083740 (Oct. 15, 2010). Complainant also does not dispute that several of the individuals who received awards for the 2006-2007 period were of the same protected classes as he. Id. at 12.
Therefore, we find that Complainant has failed to establish that the Agency's articulated reasons were pretext for discrimination or that the Agency was motivated by discriminatory animus towards his race, sex, or age.
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 adopting the AJ's decision.
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
September 10, 2012
Date
2
0120111064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111064