0220060014
05-05-2008
Agency.
Marcia R. King,
Grievant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 02200600141
Agency No. DF-2000-R-0007
DECISION
Grievant filed a timely appeal with this Commission from an arbitration
decision dated June 5, 2006, denying her grievance alleging unlawful
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., 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 arbitrator's decision.
At the time of the events giving rise to this complaint, grievant worked
as a Hearing Office Clerk, GS-6, at the agency's Office of Hearings
and Appeals (OHA) in Fort Worth, TX. The record reflects that the OHA
underwent a Hearing Process Improvement Initiative (HPI), with Phase
One beginning in December 1999. The Fort Worth, TX OHA was a Phase One
office.
Article 26 of the 1996 National Agreement between the American Federation
of Government Employees (AFGE) and OHA sets forth the process for filling
bargaining unit positions. The Agency and the Union entered into a
Memorandum of Understanding dated August 20, 1999 regarding Phase One
of HPI.
A number of new position descriptions were implemented as part of the
HPI, including the AFGE bargaining unit positions of Case Technician and
Senior Case Technician. These positions replaced the Hearing Office Clerk
and Legal Assistant positions, and additional Senior Case Technician
positions were allocated to provide promotional opportunities and to
backfill promotions of Legal Assistants to higher graded positions.
On November 16, 1999, the agency posted Vacancy Announcement No. 360-99,
advertising vacancies for Senior Case Technician positions at the GS-6/7/8
levels. The vacancy announcement stated that the position required
selectees to provide legal and technical support to Administrative Law
Judges and other technical/professional positions. The grievant submitted
an application for the GS-7 and GS-8 Senior Case Technician positions.
Pursuant to Article 26 of the National Agreement between the agency and
the Union, the applications were considered by a panel consisting of two
Union and two management representatives. The applications were scored by
the panel, and separate "Best Qualified Eligibles" lists were created for
the GS-6, GS-7, and GS-8 Senior Case Technician positions. The Selecting
Official (SO) subsequently selected seven individuals to fill four GS-7
and three GS-8 positions. The SO made no selections from the GS-6 list.
In January 2000, the grievant filed a grievance alleging nonselection
based on race (Caucasian), disability (hearing impaired), and in
retaliation for prior protected activity and whistle blowing activity.2
The agency denied the grievance at all three steps. On April 2000, the
Union invoked arbitration. Following a hearing, an arbitration decision
was issued in June 2006, finding no discrimination. The arbitrator
found that grievant failed to establish a prima facie case or race or age
discrimination. The arbitrator further found that the grievant failed to
establish that the agency's legitimate, nondiscriminatory reasons for its
actions were a pretext for unlawful discrimination. The arbitrator found
that the agency established that the qualifications of the other selectees
were superior to the grievant's qualifications, and the arbitrator noted
that the agency "did not violate any law, rule, regulation, policy,
or negotiated agreement" in not selecting the grievant.
On appeal, grievant, through her representative, argues that the
arbitrator erred in finding no discrimination because the record
evidence does not support the arbitrator's decision. Grievant argues
that her qualifications were superior to several of the selectees'
qualifications. She further argues that she established a prima facie
case of discrimination and that she established pretext. In response,
the agency urges the Commission to affirm the arbitrator's decision.
The agency contends that each of the selectees was better qualified than
the grievant.
EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
The Commission will only review that portion of the decision which
pertains to the grievant's employment discrimination claim, as it does
not have jurisdiction over any alleged violations of the Collective
Bargaining Agreement. See 29 C.F.R. � 1614.301(a).
To prevail in a disparate treatment claim, grievant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Grievant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
grievant must prove, by a preponderance of the evidence, that the agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks,
509 U.S. 502, 519 (1993).
Assuming arguendo that grievant established a prima facie case of
discrimination,3 we concur with the arbitrator's determination that the
agency provided legitimate, nondiscriminatory reasons for not selecting
grievant for any of the GS-7 or GS-8 positions. The SO testified at
the arbitration hearing that he did not select her because she was not
one of the most qualified applicants. The SO testified that some legal
education or background is helpful in the position, and grievant had no
such training or background. Additionally, the SO felt that she had not
demonstrated some of the qualities he was seeking for the positions in
question, such as the ability to multi task, work quickly, or exercise
independent judgment.
Grievant now bears the burden of proving by a preponderance of the
evidence that the agency's reasons were a pretext for discrimination.
Grievant can do this directly by showing a discriminatory reason
more likely motivated the agency or indirectly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. In a non-selection case, pretext may be found where the
grievant's qualifications are demonstrably superior to the selectee's.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, the
agency has broad discretion to carry out personnel decisions and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Burdine, 450 U.S. at 259.
Upon review, we find that grievant failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext for
unlawful discrimination. Grievant argued that she established pretext
because she was more qualified than several of the selectees. However, we
find that grievant has not shown that her qualifications for the position
were so plainly superior to that of the other selectees to warrant a
finding of pretext. We note that four of the selectees had previous
experience working as Legal Assistants or Senior Case Technicians,
and two of the selectees had acquired Paralegal Certification from
the University of North Texas. Therefore, we find that grievant has
not shown the agency's articulated reasons for her nonselection were a
pretext for race, disability, age, or reprisal discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the arbitrator's
decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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 (Z0408)
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
May 5, 2008
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
2 Although grievant's initial grievance did not address any other claims,
the record reflects that the arbitrator accepted a claim of age (52)
discrimination.
3 For purposes of this decision the Commission assumes without
finding that grievant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0220060014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0220060014