0120092387
01-21-2011
Vera H. Goodridge, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Vera H. Goodridge,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120092387
Agency No. ATL-08-0020-SSA
DECISION
On May 19, 2009, Complainant filed an appeal from the Agency's April 27,
2009, final decision concerning her 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 decision.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated
against on the bases of race, age, sex and reprisal when she was not
selected for the position of Management Analyst (Project Manager), GS-14,
posted under vacancy announcement number SSA-420-2007.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Management Analyst, GS-13 at the Agency's Management
and Operations Support (MOS) facility in Atlanta, Georgia. Complainant
applied for and made the best qualified list (BQL) for the position
of Management Analyst, GS-14. Twenty-one candidates were included
on the BQL. Complainant however, was not selected for the position.
Instead, the candidate selected was a 45 year old, Native American,
male with no prior EEO activity.
Complainant contends that she was better qualified for the position at
issue than the selectee because she had more years of experience as a
staff specialist in the Atlanta Regional Office. She also maintains
that she had more years of management experience and had more years
of experience with the Agency. Complainant believes her age was the
reason for her non-selection because the Agency allegedly had a pattern
of discriminating against older employees. Complainant stated that
race and sex were factors in her non-selection because the selectee
for this position was a White male. She noted that the selectee for a
position she applied for in May 2002, wherein the Agency was found to have
discriminated against her, also involved the selection of a White male.
Finally, Complainant contends that reprisal/retaliation was a basis
because the selecting official for the position at issue was responsible
for implementing an EEOC decision wherein discrimination was found.
On December 12, 2007, Complainant filed the instant EEO complaint
alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), age (53), and reprisal for prior
protected EEO activity when she was not selected for the position of
Management Analyst, GS-14.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her 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 her to discrimination as alleged.
CONTENTIONS ON APPEAL
Neither, Complainant nor the Agency submitted briefs on appeal.
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").
Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Once Complainant has established a prima facie
case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is
successful, the burden reverts back to the Complainant to demonstrate
by a preponderance of the evidence that the Agency's reason(s) for its
action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by
a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).
In a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, supra, to establish a prima facie case of reprisal,
s/he must show: (1) s/he engaged in a prior protected activity; (2)
the official acting on behalf of the agency was aware of the protected
activity; (3) s/he was subjected to adverse treatment by the agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
Based on a thorough review of the record, we affirm the finding of no
discrimination. The Commission finds that Complainant has failed to show
that her protected bases were considered with regard to the selection
at issue. We find that even if we assume arguendo that Complainant
established a prima face case of discrimination as to all bases, we
find the Agency has articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the selecting official revealed that she
received the BQL list and thereafter reviewed the applications looking at
past relevant experience, training courses, awards, and education. The
selecting official also looked at how well the application was written.
The selecting official indicated that she had personal knowledge of 19 of
the 21 candidates so did not have to interview the candidates or contact
their supervisors for recommendations. She indicated that she selected
the selectee because he was more qualified to fulfill her expectations
for the position, which included the need for good written and oral
communication skills and good analytical abilities, as well as broad
experience incorporating both programmatic and administrative knowledge.
Further, the selecting official explained that when comparing the
selectee's and Complainant's qualifications, they both held similar
positions within the Agency, including Claims Representative, Operations
Supervisor, and acting Branch Manager. They also had both served in
the Regional Office in GS-12 Staff positions, and held GS-13 Specialist
position in the Regional Office. And, while both Complainant and the
selectee had programmatic experience, the selectee has significantly more
administrative experience, which was needed for the position at issue.
The selecting official indicated that the selectee also had participated
in the one-year Atlanta Management Development Program at the GS-14 level.
She indicated that in her opinion, the selectee was better quailed for
the position than the Complainant because of his broader experience,
and because of his demonstrated ability to lead regional projects
and provide critical support to national projects. Additionally, the
selecting official stated that the selectee had previously worked for
her and during that time, she observed his outstanding written and oral
communication skills. She also noted that he managed large regional
projects and impacted national processes and projects in his areas of
expertise. The selecting official indicated that age, race, sex, and
prior EEO activity was not considered in making her selection decision.
To show pretext, Complainant maintained that she was better qualified for
the position than the selectee because she had more years of experience as
a staff specialist, more years of management experience, and she had held
various positions throughout the Agency. The Agency showed however, that
the selectee's list of duties and responsibilities were more extensive
and broader in scope than Complainant's duties and responsibilities.
The Commission finds that based on the record evidence Complainant
has failed to show that the Agency's legitimate, nondiscriminatory
reasons were pretext for discrimination. We find that other than
Complainant's belief that she was more qualified for the position than
the selectee she has provided no evidence which demonstrates that she
was discriminated against as alleged with respect to the selection of
this position. Moreover, we find that Complainant has not shown that
the disparities in qualifications between her and the selectee are "of
such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the [selectee] over [her] for
the job in question." Ash v. Tyson Foods, Inc., 190 Fed.Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007).
CONCLUSION
Accordingly, we AFFIRMED the Agency's finding of 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
___1/21/11_______________
Date
2
0120092387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092387