0120083958
06-14-2012
Bonnie Fitch, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Bonnie Fitch,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120083958
Hearing No. 570-2007-00572X
Agency No. OHA972055SSA
DECISION
On September 12, 2008, Complainant filed an appeal from the Agency's August 19, 2008, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final order.
BACKGROUND
Congress mandated that all applicants for Administrative Law Judge (ALJ) positions must participate in a competitive examination process, which the Office of Personnel Management (OPM) develops, administers, and scores. See 5 C.F.R. � 930.201-203. After applicants complete the ALJ examination, OPM provides them with an examination score which is adjusted to reflect any applicable veterans preference.
The Social Security Administration (SSA) is one of several Federal Agencies that employs ALJs. SSA solicits applicants for ALJ positions by identifying the geographic areas where ALJ vacancies exist and requesting that OPM provide "certificate of eligible candidates" for consideration. OPM then provides SSA with a certificate of eligible candidates, which identify the three to four highest scoring applicants who have expressed a willingness to serve in the geographical areas where the vacancies are located. SSA then selects a candidate from the certificate of eligible candidates.
Complainant completed the ALJ examination, and on June 18, 1996, OPM notified Complainant that she received a final score of 89.5 points. Complainant appealed this score to OPM, and on July 21, 1997, OPM notified her that after a review of her examination her final examination score decreased to 88.9 points.
On an unknown date in 1997, SSA asked OPM for certificates of eligible candidates for vacant ALJ positions. OPM did not include Complainant's name on any of the certificates of eligible candidates that it forwarded to SSA. Complainant was not selected by SSA for an ALJ position.
On December 9, 1997, Complainant filed an EEO complaint alleging that the Agency (SSA) discriminated against her on the bases of race (African-American) and sex (female) when:
1. She was not selected for an Administrative Law Judge (ALJ) position.
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). Complainant timely requested a hearing.
On May 16, 1999, the EEOC AJ remanded the complaint to the Agency to be held in abeyance pending resolution of a class action before the Merit Systems Protection Board (MSPB), Azdell and Fishman v. OPM, 89 M.S.P.R. 88, (July 13, 2001) in which a class of individuals challenged the scoring formula used by OPM in its ALJ examination. Ultimately, on February 20, 2003, the United States Court of Appeals for the Federal Circuit found that OPM's scoring methodology for ALJ examinations was lawful. See Meeker v. MSPB, 319 F.3d 1368 (Fed. Cir. 2003). As a result, on December 11, 2006, Complainant revived her request for a hearing before an EEOC AJ.
Over Complainant's objections, the AJ assigned to the case granted the Agency's November 15, 2007, motion to dismiss or in the alternative a motion for a decision without a hearing, and the AJ dismissed the complaint on August 12, 2008. The AJ dismissed the Complaint on the grounds that Complainant was not aggrieved by the actions of SSA, and that Complainant's allegations challenge the actions taken by OPM rather than SSA. The Agency subsequently issued a final decision adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal Complainant contends that dismissal was inappropriate because she alleged claims against SSA that state a cause of action. Complainant also alleged that a hearing was necessary because material facts remain in dispute, and that evidence in the record raises an inference that SSA discriminated against Complainant. In opposition to the appeal, the Agency contends that its final decision should be affirmed.
ANALYSIS AND FINDINGS
Dismissal for Failure to State a Claim
The AJ dismissed this complaint for failure to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that a complaint shall be dismissed if it fails to state a claim. EEOC regulations state that an Agency shall accept a complaint from any "aggrieved" employee or applicant for employment who believes that he or she has been discriminated against because of race, color, religion, sex, national origin, reprisal for prior EEO activity, age, and disability. 29 C.F.R. � 1614.103, 106(a). The term "aggrieved" has been interpreted by the courts and the EEOC to mean an employee who has suffered a personal loss or harm with respect to a condition, term, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, Appeal No. 01932839 (April 21, 1994); Garner-Cherry v. U.S. Postal Serv., EEOC Appeal No. 01A14698 (January 3, 2002).
Here, the AJ found that the complaint must be dismissed because Complainant was not aggrieved by the actions of SSA. Instead, the AJ found that Complainant was aggrieved by the actions of OPM when it did not put her on the certificates of eligible candidates. After a review of the record, we find that Complainant established that she was aggrieved by SSA when she alleged that she was subjected to discrimination when she was not selected by SSA for the ALJ positions. See Lane v. Dep't of Defense, EEOC Appeal No. 0120101222 (June 21, 2010) (Complainant was aggrieved when she alleged her non-selection was discriminatory, and the Agency's articulation that she was not selected because she was not eligible and therefore not considered for the position goes to the merits of the complaint); Penton v. U.S. Postal Service, EEOC Appeal No. 0120090350 (April 21, 2009) (Complainant is aggrieved and states a claim because she is alleging a discriminatory non-selection). The fact that Complainant was not on the certificate of eligible candidates is the Agency's legitimate, nondiscriminatory reasons for not selecting Complainant for the position, and therefore goes towards the analysis of the merits of the complaint. As a result, dismissal of this complaint for failure to state a claim was not appropriate.
Summary Judgment
We find that instead of dismissing the complaint, the AJ instead should have granted the Agency's motion for a decision without a hearing. See Zygas v. U.S. Postal Service, EEOC Appeal No. 0120082243 (Sept. 28, 2009) (AJ erroneously dismissed a claim for failure to state a claim, and on appeal we found that summary judgment was appropriate and the claim was addressed on the merits); Hovsepyan v. Dep't of State, EEOC Appeal No. 0120082449 (Oct. 22, 2009) (AJ improperly dismissed a claim for failure to state a claim, and on appeal we found that summary judgment was appropriate and the claim was addressed on the merits).
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. Dep't of Def., 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 we find that the issuance of a decision without a hearing is appropriate in this case. The record has been adequately developed, Complainant was given notice of the Agency's motion to dismiss or in the alternative issue a decision without a hearing, she was given an opportunity to respond to the motion, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. Additionally, the AJ's decision dismissing the complaint contained a comprehensive background of the undisputed facts, articulated the Agency's legitimate, nondiscriminatory reasons for not selecting Complainant, and provided an analysis of Complainant's rebuttal to the Agency's reasons for not selecting Complainant.1 Further, as discussed below, even if we assume all facts in favor of Complainant, a reasonable fact finder could not find in Complainant's favor. Therefore, we will analyze the merits of Complainant's complaint below.
Disparate Treatment
Complainant claims that she was discriminated against by SSA on the bases of her sex (female) and race (African American) when she was not selected for an ALJ position. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we will assume without finding that Complainant has established her prima facie cases of race and sex discrimination.
The Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency stated that Complainant was not considered and ultimately not selected for the ALJ positions because she was not listed on the certificates of eligible candidates provided to SSA by OPM.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her race or sex.
Complainant alleged that SSA should be liable because it continues to make selections for ALJ positions from the certificates of eligible candidates provided by OPM, even though OPM uses discriminatory practices to evaluate applicants. Complainant alleged that the scoring criteria and scoring process for the ALJ examination disproportionately injured African American and/or female applicants for the SSA ALJ positions. As an example, Complainant asserted that OPM's interview panels comprised entirely of white males.
After a review of the record and the specific facts in this case,2 we find that Complainant failed to establish that SSA had anything to do with OPM's scoring criteria or scoring process for the ALJ examination. The record is also devoid of any evidence that would establish that SSA had any role in placing individuals on the certificates of eligible candidates,3 or that SSA could have hired ALJs outside of the certificates of eligible candidates. We note that Congress authorized OPM, and not any other Federal Agency, to develop, administer, and score the ALJ competitive examination. See 5 C.F.R. � 930.201. Finally, Complainant failed to support her assertion that SSA should be found liable because it did not conduct an adverse impact study or a study procedure to determine what disparate impact the ALJ selections have on protected groups. As a result, we find that Complainant failed to establish that SSA discriminated against Complainant when it did not select her for the ALJ position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and find that a preponderance of the evidence does not establish that discrimination existed as alleged.
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
6/14/2012
__________________
Date
1 We note that this is part of the framework of the McDonnell Douglas analysis, which is used when analyzing the merits of a disparate treatment case to determine whether discrimination existed. See McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
2 We note that the specific facts of this case are distinguishable from Menoken v. Dep't of Health and Human Services, EEOC Appeal No. 0120060470 (July 26, 2007) in which Complainant alleged that DHHS had solicited certificates of eligible candidates in a manner specifically designed to avoid receiving a certificate containing Complainant's name.
3 Complainant alleged that individuals who scored lower than her were placed on the certificates of eligible candidates. A review of the record reveals that the certificates of eligible candidates that Complainant referred to are dated 1995, which is prior to when Complainant received her ALJ examination score and prior to the time period relevant to this complaint. Additionally, this does not establish that SSA is responsible for any alleged discrimination in OPM's creation of the certificates of eligible candidates.
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0120083958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083958