01A23993_r
08-07-2003
Ruth K. Jobe, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Ruth K. Jobe v. Social Security Administration
01A23993
August 7, 2003
.
Ruth K. Jobe,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A23993
Agency No. 01-0189-SSA
DECISION
Complainant appeals from the agency's June 25, 2002 decision finding
no discrimination. Complainant alleged that she was discriminated
against on the bases of age and reprisal when, on September 21, 2000,
she learned that she had not been selected for one of three positions
of Paralegal Analyst, GS-950-09, Vacancy Announcement No. SSA-2000-227.
For the reasons that follow, the Commission AFFIRMS the agency's decision.
The agency determined that complainant had established a prima facie case
of discrimination on the bases of age and reprisal. In its decision,
the agency concluded that the selecting official had articulated a
legitimate, nondiscriminatory reason for his action. Specifically,
the selecting official considered that while complainant experienced
grade stagnation in her position for several years, complainant's
performance, in a recent Paralegal Analyst temporary 90-day detail, was
not as strong as those candidates who were selected. In particular,
the selecting official noted that complainant was not a good writer
and could or would not properly edit her writing. This was critical to
the selecting official as her writing ability would be heavily relied
on as the Paralegal Analyst was expected to produce between two and
three decisions a day. The selectees' �ability to spot issues, extract
relevant facts from reports when combined with the ability to �write a
legally defensible position, which was easy to read, had good grammar,
and showed that they had mastered the information,'� in comparison with
complainant's performance, demonstrated to the selecting official that the
selectees had much stronger skills than those possessed by complainant.
Additionally, the record indicates that the selecting official's criteria
for making selections was in accord with the duties as stated in the
vacancy announcement. Thus, the agency found that the selecting official
had articulated a legitimate, nondiscriminatory reason for not selecting
complainant for a position as a Paralegal Analyst.
Next, the agency found that complainant had not established that,
more likely than not, the selecting official's articulated reason was
a pretext to mask unlawful retaliation. The Commission has held that
pretext can be shown where a complainant's skills and qualifications are
observably superior to those selected. However, selecting officials have
the discretion to choose between equally qualified candidates. Here,
complainant has not shown that her skills and qualifications were clearly
superior to, or at a minimum equal with, those of selectees. Accordingly,
complainant has failed to show, by a preponderance of the evidence, that
she was retaliated against or discriminated against on the basis of age.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 7, 2003
__________________
Date