0120080218
04-21-2009
Sharon P. Diamond, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Sharon P. Diamond,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120080218
Hearing No. 470-2006-00159X
Agency No. CHI050292SSA
DECISION
On October 12, 2007, complainant filed an appeal1 from the agency's
September 5, 2007 final decision (FAD) concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Community Aide for the Senior Aide Program in the Lansing Field
Office, Lansing, Michigan.2 On May 20, 2005 complainant filed an EEO
complaint alleging that she was discriminated against on the bases of
disability (fibromyalgia, allergies, allergic rhinitis, acid reflux,
migraine headaches, severe rotator cuff injuries, high blood pressure)
and age (55) when:
(1) she was not treated fairly in the application/selection process
when she was not properly informed about applying, was not given an
application interview and was not properly considered for the Medicare
Claims Representative position; and
(2) she learned that she was not selected to the position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). On September 11,
2006, complainant requested a hearing before an AJ. On May 9, 2007, the
AJ issued a Dismissal Order. The AJ found that complainant waived her
right to a hearing and ordered the agency to issue a final decision on
the merits of the complaint. Consequently, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that complainant failed to prove that she was subjected to discrimination
as alleged.
The FAD specifically found as follows: Complainant stated that in November
2004, she heard a manager (M1) tell another employee that the office would
be hiring at the beginning of the year. When complainant asked about
a position, M1 told her she already had a job and provided no further
information. Complainant could not locate a vacancy in the Lansing
Office on the OPM website. Complainant believes she was not given the
information in order to prevent her from applying because of her age and
disabilities. Since complainant did not have a copy of her own resume,
she asserts that she asked the Operations Supervisor (OS) and another
manager to retrieve a copy of her resume from her SSA file so she could
apply to the position. Complainant repeatedly expressed interest in the
position and requested her resume be obtained and submitted in application
for the position, but she received no response from management.
In or about January 2005, OS told complainant that interviews were being
conducted for the position. Complainant again declared she wanted
to be considered for the position and OS told complainant to see M1.
However, M1 told complainant she was free to apply for any position in
a sarcastic and dismissive tone, and complainant stated she wanted to
be considered for the position. M1 did not schedule complainant for an
interview and did not speak to complainant again regarding the position.
The following Monday when complainant arrived for work, she asked if she
was going to be interviewed and M1 told her the interviews were over.
Complainant later learned the position was never advertised, that
management formed their pool of candidates mostly from resumes on file,
and the resumes were reviewed to make a selection. Complainant believes
she was discriminated against based on her disabilities because the
selectee did not have any apparent disabilities. Complainant states
that affirmative action and executive orders require that she, as an
individual with disabilities, should have received special consideration.
She also notes that the selectee was significantly younger in age.
The FAD found that complainant did not prove that she was an individual
with a disability pursuant to the Rehabilitation Act, and therefore,
she did not establish a prima facie case of disability discrimination.
The FAD assumed that complainant could establish a prima facie case of
age discrimination. The FAD further found that the agency articulated
legitimate, nondiscriminatory reasons for its selection. Specifically,
M1 stated that about one hundred applicants were collected by resume,
application or database entries of interest in employment. A panel then
conducted interviews and made a consensus recommendation to the selecting
official. M1 further stated that on February 3, 2005, complainant
asked her to retrieve her resume and consider it as an application for
the position. This was M1's first awareness of complainant's interest in
full-time employment with the agency. When M1 reviewed the resume, she
noticed that complainant had not detailed her professional experiences
or provided specifics about her education. Consequently, there was
no way for M1 to know if complainant had the qualifications necessary
for the position. This was not conveyed to complainant because other
applicants whose resumes lacked similar information were not informed
of the lack of detail or specificity. No applicant was given the
vacancy announcement prior to the interview date and no applicant had
the opportunity to submit a new/revised resume and M1 did not believe
it was appropriate to give complainant such preferential treatment.
Management further stated that the selectee was chosen because of her
work experience as reflected on her resume, her interview responses
regarding those experiences and work ethic, the initiative she had
shown in her current position and positive feedback M1 received when she
checked references. M1 noted that complainant was impressive in terms
of her ability to quickly pick up on her job and her productiveness.
However, M1 also noted that complainant received too many personal phone
calls, did not handle her time and attendance on a timely and accurate
basis, and handled personal affairs at work. The FAD then found that
complainant did not establish that the agency's reasons were merely
pretexts for discrimination.
On appeal, complainant's former representative contends that complainant
was subjected to illegal discrimination.3 The agency asks the Commission
to affirm the FAD. 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 EEOC Management Directive 110, 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.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Assuming complainant could establish a prima facie case of disability
and/or age discrimination, the agency has articulated a legitimate,
nondiscriminatory explanation for its actions. Complainant has not
persuaded the Commission that such reasons are more likely than not,
pretexts for discriminatory animus. Complainant contends that she was
more qualified for the position than the selectee. We note that the
agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may
be able to establish pretext with a showing that her qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). Here, complainant has failed to
make this showing.
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 (M1208)
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 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 (S0408)
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 (Z1008)
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
April 21, 2009
__________________
Date
1 It appears that complainant's former representative filed this appeal
on behalf of complainant without her knowledge in order to preserve her
rights.
2 According to complainant, she was not a federal employee. She states
that the Senior Aide Program is a federally funded program for income
eligible individuals age 55 and older that attempts to provide training
and office skills to transition back into the workforce. Complainant was
working at the agency through that program.
3 Although this former representative suggests that the agency improperly
denied him official time to assist in complainant's representation, he
fails to provide any elaboration on what exactly transpired. We note
additionally, that since complainant does not specifically contend
that the AJ improperly cancelled the hearing, we will not address the
propriety of such decision herein.
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0120080218
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080218