01A04724
12-16-2002
Stuart N. Teeters, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Stuart N. Teeters v. Social Security Administration
01A04724
December 16, 2002
.
Stuart N. Teeters,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A04724
Agency No. 98-0245-SSA
DECISION
Complainant appealed to this Commission from the agency's June 7,
2000 final decision concerning his employment discrimination complaint
alleging violations 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.
Complainant, a Program Analyst at the agency's Headquarters, alleged
discrimination on the bases of race (Caucasian), sex (male), age, and
in reprisal for prior EEO activity<1> when:
On October 14, 1997, complainant was not selected for the GS-13
Social Insurance Specialist (System) position advertised under Vacancy
Announcement P-1070.
Complainant was denied the representative of his choice.
The agency has pursued a continuing systemic discriminatory policy
resulting in disparate impact against all males and particularly
Caucasian males 40 years of age and older in the following personnel
practices: Hiring, ratings, awards, and promotions. . . . The agency's
policies erected an illegal barrier violating complainant's Fifth
Amendment right to equal protection, and are the result of an its
illegal affirmative action program, as articulated in the agency's
Affirmative Employment Program Reports. The Commissioner's failure to
discipline [an agency employee] for her sexist joke and to disavow such
conduct to all employees has further poisoned the employment atmosphere.
Further, former Commissioner [ ], through her support of these policies
and conduct, continued the hostile work environment for men in the
agency, which kept complainant from being promoted and receiving his
meritoriously earned share of the financial awards.
The agency deliberately uses Civilian Labor Force data to misrepresent
its comparative situation when it knows that the majority of its jobs
are not filled by sixteen (16) year old employees.
The Associate Commissioner's staff in �OD� is disproportionately staffed
with females, which reduced complainant's opportunities for promotions
and the experience to qualify for promotions.
The head of the Office of Civil Rights and Equal Opportunity (OCREO)
illegally reports to the Deputy Commissioner of Human Resources (HR),
in violation of EEOC Regulations. Because the top three supervisory
positions in HR are held by minorities, complainant is unable to get
unbiased counseling and processing of his complaints, and contributes
to the hostile work environment for Caucasian males.
On July 6, 1998, the agency accepted claims (1) and (2), but dismissed
the remainder of complainant's claims for failure to state a claim.
The agency found that the dismissed claims involved a generalized
grievance, not individual harm. On December 11, 1998, the agency expanded
its July 6, 1998 dismissal to include claim (2). Complainant appealed
these decisions, but the Commission remanded them to the agency for
consolidation with the accepted claims, in accordance with regulation
changes that became effective November 9, 1999.
The agency proceeded to investigate claim (1). Complainant elected to
receive an immediate final decision from the agency rather than a hearing.
As a result, the agency issued its June 7, 2000 final decision on the
merits, finding no discrimination from the agency's failure to select
complainant for the GS-13 Social Insurance Specialist (System) position.
The agency also reiterated its dismissal of complainant's other claims.
In its finding of no discrimination, the agency found legitimate reasons
for the selection, and no evidence of pretext. Both complainant and
the selectee were included on the best qualified list, and interviewed
by the promotion panel. The agency found that the selectee exhibited
�visionary� leadership qualities in her interview, but complainant did
not. All three panel members listed the selectee as the best choice
for the position after interviewing the best qualified candidates.
The selecting official followed the panel's suggestion, and chose the
selectee to fill the position.
On appeal, complainant argues that the agency improperly identified his
claims. He contends that the agency should have addressed his claims
exactly as written, including references to the systemic nature of the
harm in all of his claims, and agency documents supporting his allegation
that the agency's Affirmative Employment Plan fostered the discrimination
he raised in each claim. With regard to his nonselection, complainant
notes that prior to the interviews, he received the highest score for his
background and experience. He notes that after the selectee began working
in her new position, she had difficulty performing some of her duties.
According to complainant, the selectee supports his claim that he was
more qualified. Complainant also notes that one of the panel members
worked for the selectee's husband, and that her selection was �based
on politics, nepotism, and cronyism.� He also notes that the record
included no written record of the interviews.
With regard to claim (2), complainant argues that he suffered harm from
the agency's disqualification of his representative. Complainant notes
that although the representative was disqualified because he was a team
leader, no conflict of interest existed because the representative
supervised a different team, with different tasks, for a different
Deputy Commissioner. Complainant contends that the disqualification of
his representative harmed the presentation of his case.
ANALYSIS AND FINDINGS
Procedural Issues
The agency properly identified complainant's claims. The additional
information complainant cites as additional claims, or integral portions
of identified claims, do not state independent claims. They provide
background information and evidence to support his claims of hostile
work environment, Affirmative Employment plan miscues, and systemic
violations identified in claims (3) - (6) above. The Commission will
not redraw complainant's claims.
With regard to claims (3) - (6), complainant cannot pursue a generalized
grievance that members of one protected group are afforded benefits
not offered to other protected groups, unless he further alleges some
specific injury to him as a result of the alleged discriminatory practice.
See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Department
of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997)
(claim that nurse practitioners in one unit received more favorable
treatment than nurse practitioners in other units was a generalized
grievance). The matters complainant raises in claims (3) - (6) do
not allege any specific injury from the agency's practices. See Brown
v. Social Security Administration, EEOC Request No. 05980875 (November 4,
1999) (claim concerning systemic policy against white males in hiring,
rating, awards, and promotions a generalized grievance); Boyer v. Social
Security Administration, EEOC Appeal No. 01990200 (July 22, 1999) req. to
recons. den. EEOC Request No. 05991067 (June 20, 2000); see also Jackson,
Jr., v. Social Security Administration, EEOC Appeal No. 01966851 ( July
16, 1997) req. for recons. den. EEOC Request No. 05971022 (June 24, 1999)
(claim regarding application of Affirmative Action program to disabled
veterans is a generalized grievance); Pettiford, Jr. v. Social Security
Administration, EEOC Appeal No. 01955037 (July 1, 1996) (claim regarding
systemic and institutionalized discrimination against African-American
males in promotional opportunities and incentive rewards is a generalized
grievance). Further, the information complainant cites to support his
claims does not provide evidence of any individualized harm.
Complainant also contends that his claims involve a continuing violation,
and thus should be considered with the accepted nonselection claim.
The doctrine of continuing violation applies to the timeliness of
claims, not whether they state a claim of discrimination. Therefore,
complainant's references to continuing violations do not rehabilitate
his claims. Further, even if timeliness was at issue, the Commission
notes that the hiring, promotions, awards, and other actions complainant
cites are �discrete actions,� and thus not amenable to analysis as a
continuing violation. See National R.R. Passenger Corp. v. Morgan,
122 S. Ct. 2061 (2002).
The agency's dismissal of claim (2), however, was improper. The
agency failed to show how the representation �would conflict with
the official or collateral duties of the representative.� Jacobs
v. Department of the Navy, EEOC Appeal No. 01976849 (January 28,
1999) req. for recons. den. EEOC Request No. 05990448 (May 18, 2001).
The representative's management position as a team leader does not show
any inherent conflict with representing an employee who works outside of
the representative's chain of command, in a different unit of the agency.
Further, the representative was not given an opportunity to respond
prior to being disqualified. Therefore, the Commission finds that claim
(2) states a claim. See Brown v. Social Security Administration, EEOC
Appeal No. 01973821 (June 7, 1999) req. for recons. den. EEOC Request
No. 05990812 (May 17, 2001); Bostron v. Social Security Administration,
EEOC Appeal No. 01970995 (June 3, 1999), req. for recons. den. EEOC
Request No. 05990804 (August 3, 2000); Hyza v. Social Security
Administration, EEOC Appeal No. 01973821 (June 19, 1998) req. for
recons. den. EEOC Request No. 05980997 (September 5, 2000).
Notwithstanding the Commission's findings for claim (2), the only
remedy available to complainant for this claim is to allow him to use
the representative of his choice. The administrative processing of
his complaint has come to an end. Therefore, since there is no remedy
available to complainant, claim (2) is properly dismissed.
Merits Issue - Nonselection
The agency articulated a legitimate reason for its actions. The selecting
official followed the recommendation of the promotion panel, and the panel
found that the selectee provided the best responses to interview questions
and �visionary leadership� qualities they sought. Complainant has
failed to show that their decision was a pretext for discrimination.<2>
Complainant cites alternative reasons for the agency's actions,
including politics, nepotism, and cronyism. While such actions may
violate law and or regulation, they do not violate regulations enforced
by this Commission. Peterson v. Department of Agriculture, EEOC Appeal
No. 01980139 (September 14, 2001); Folcarelli v. Department of Veterans
Affairs, EEOC Appeal No. 01993915 (March 14, 2000) [citations omitted].
CONCLUSION
Accordingly, the agency's decision 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
December 16, 2002
__________________
Date
1In his affidavit to the EEO Investigator,
complainant requested that the agency exclude the basis of reprisal
from his claim. Therefore, the Commission will not address this basis
in his appeal.
2Complainant raises the agency's Affirmative Action Plan, but the
Commission notes a memorandum in the record identifying white males
as one of the groups under-represented for the position being filled,
(and white females over-represented). It urged the promotion panel to
consider applicants from the under-represented groups.