0120072176
08-10-2007
Cindy S. Smith, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cindy S. Smith,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120072176
Hearing No. 540-2006-00168X
Agency No. DEN061908SSA
DECISION
On March 27, 2007, complainant filed an appeal from the agency's March
5, 2007, final order 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. 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 order.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the basis of reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when she was not selected for
a promotion to Social Insurance Specialist (Technical Expert), GS-12.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Claims Representative, GS-11, at the agency's Ogden, Utah office. Her
primary duty was to process claims for insurance benefits under Title
II of the Social Security Act. In September 2005, complainant applied
for a promotion to Social Insurance Specialist (Technical Expert),
GS-12. On October 31, 2005, she was notified that she was not selected.
The agency indicated that it made its selections decision based on the
following criteria:
1. The ability to develop and adjudicate the most complex non-routine
Title II cases;
2. The ability to investigate and develop fraud cases;
3. The ability to provide technical expertise on the most effective use
of software/system to process complex claims;
4. The ability to communicate:
a. in providing training to other employees;
b. in providing technical expertise to other employees;
c. in providing information to other agencies and Social Security
Administration components;
5. The ability to provide technical staff advice;
6. Comprehensive knowledge of Social Security programs;
7. Working knowledge of the automated programs and systems applications
used in the administration of Social Security benefits;
8. Working knowledge of the programs, policies, and procedures
administered by the Social Security Administration;
9. The ability to maintain a large workload while meeting the agency's
performance goals;
10. The ability to produce quality, accurate work with minimal error;
and
11. The ability to successfully mentor and provide technical assistance
to other employees.
The agency's selecting official stated that, based on this criteria, the
selectee was more qualified than complainant for the following reasons:
1. He had a more extensive technical knowledge and background of the
programs, policies, and procedures administered under Title II;
2. He worked independently, relying very little upon instruction from
others;
3. He performed independent research to find answers and solutions to
complex problems;
4. Statistical data indicates that he reached the agency's overall timely
paid disability insurance benefits goal 44% of the time in the prior two
years, whereas complainant reached the same goal only 26% of the time;
5. Statistical data indicates that he reached the agency goal for claims
timely processed with respect to Retirement and Survivors Insurance
Benefits 83% of the time in the prior two years, whereas complainant
reached the same goal only 44% of the time;
6. He adjudicates payment of Social Security benefits with minimal err
or discrepancy;
On February 9, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when she was
not selected for a promotion to Social Insurance Specialist (Technical
Expert), GS-12.
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). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on February 13, 2007. The
agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination
as alleged. Specifically, the AJ determined that complainant failed to
show a causal connection between her prior EEO activity and the alleged
incident of discrimination. The AJ further found that complainant failed
to demonstrate that the agency's articulated reason for not selecting
her is pretext for discrimination. On appeal, complainant contends that
the AJ failed to properly consider evidence that she is more qualified
than the selectee. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). 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 Chapter 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").
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. Department of Defense, 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, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine
issue of material fact exists such that a hearing on the merits is
warranted. Specifically, the Commission finds that the AJ made certain
that: the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). In nonselection cases,
pretext may be found where the complainant's qualifications are plainly
superior to the qualifications of the selectee. See Wasser v. Department
of Labor, EEOC Request No. 05940058 (November 2, 1995). The Commission
notes, however, that an employer has the discretion to choose among
equally qualified candidates provided that the employment decision is
not based upon unlawful criteria.
After careful review of the record, we find that it does not contain
sufficient evidence to support a finding that complainant's qualifications
were plainly superior to the qualifications of the selectee. Although
complainant contends that she was more qualified than the selectee,
a preponderance of the evidence in the record supports the AJ's finding
that complainant failed to show that management acted in reprisal when
she was not selected. Specifically, the record contains statistical data
indicating that the selectee processed benefit claims more efficiently
than complainant. Complainant contends that this data is not an accurate
reflection of the applicants' relative productivity rates because the
selectee used improper processing procedures and was given claims that
were easier to process. However, she submits no documentation or other
evidence in support of this allegation.
Complainant asserts that she should have been selected because she had
twenty-five years of experience with the agency, she specialized in
Continuing Disability Reviews, and she had adjudicated both Title II and
Title XVI programs. Moreover, the record contains performance appraisals
and affidavits from co-workers indicating that complainant is a highly
valued employee. However, these factors serve to illustrate merely
that complainant is indeed highly qualified, as is the selectee. They
do not patently show, as she suggests, that she is more qualified than
the selectee.
In this regard, the Commission finds that the AJ's decision summarized
the relevant facts, and we discern no basis to disturb the AJ's finding
of no discrimination on the basis of reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the final
agency decision.
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
_________________
Date
August 10, 2007
2
0120072176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072176