0120122410
11-09-2012
Elsibeth Brandee McCoy, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Elsibeth Brandee McCoy,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122410
Hearing No. 530-2011-00219X
Agency No. PHI-11-0206-SSA
DECISION
On May 10, 2012, Complainant filed an appeal from the Agency's April 23, 2012, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician, GS-986-08, at the Agency's Office of Disability Review and Adjudication in Huntington, West Virginia. She had been in her position since she was hired by the Agency in February 2009. On February 18, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when she was not selected for the position of Paralegal Specialist, GS-950-9/11/12, in November 2010.
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 November 1, 2011, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a response in opposition to the Agency's Motion on November 7, 2011. The Agency filed its Reply to Complainant's Opposition on November 28, 2011. The AJ assigned to the case issued a decision without a hearing on April 5, 2012.
In her decision, the AJ found that there were no material facts in dispute and no issues of credibility which would warrant a hearing, and that a decision without a hearing therefore would be appropriate. The AJ found that the facts of the case were as follows: On September 30, 2010, the Agency posted a vacancy announcement for a Paralegal Specialist position, GS-950-9/11/12. There were forty-seven applicants for the position, including Complainant. The application asked for information about work experience and background, and included a number of questions in which the applicant was to describe their experience on specific topics, with five levels of experience to choose from. An automated USA Staffing System rated and assigned scores based on the candidates' responses. Under the Agency's staffing policies, the top fifteen candidates who had a score of at least 50% of the total maximum score would be included on the Best Qualified List (BQL). The cut-off score for the BQL was 95; Complainant scored a 93. She was not on the BQL, and was not referred to the selecting official for consideration. The selectee was White.
Complainant argued to the AJ that she was not selected and not on the BQL because she truthfully answered the questions which required candidates to self-rate their experience, while other candidates had bragged about embellishing their qualifications and selecting the highest rating for themselves in order to get put on the BQL. Complainant claimed that the Agency unreasonably relied on the questionnaire, and asserted that it had an adverse impact on her as a minority candidate, the only minority in the Huntington office. She claimed to be the best-qualified candidate for the position. Complainant appealed her non-inclusion on the BQL to the human resources department prior to the completion of the selection process, but her appeal was denied.
The AJ concluded that Complainant had not established a prima facie case of race discrimination. She found that Complainant was qualified for the position, applied, and was not referred for consideration and not selected. However, she found that Complainant was not similarly-situated to the selectee and the other applicants because she was not ranked highly enough to be included on the BQL. She noted that the BQL did include other applicants who were of Complainant's same race, although the selectee was not of Complainant's race.
The AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position. The BQL was generated using scores tabulated from a self-assessment from the on-line application process. Complainant's score did not make the cut-off for the BQL, as determined by the Merit Promotion Plan implemented through joint agreement by the Agency and Complainant's representative Union. Therefore, she was not referred for interview, and not selected. The AJ found that Complainant did not show that the Agency's reasons were pretext for discrimination based on her race, as she did not show that her race was considered during the selection process. The AJ also concluded that Complainant had not filed a disparate impact claim, and had not shown any statistically significant data showing a disproportionate effect of the use of the self-reporting questionnaire on African Americans. The AJ also noted that Complainant had not shown that her qualifications were so plainly superior to those of the selectee so as to warrant a finding in her favor.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her statement on appeal, Complainant argued that, contrary to the AJ's finding, she had met the requirements to establish a prima facie case of race discrimination. She also argued that the Agency's legitimate, nondiscriminatory reason was unlawful because the Federal Labor Relations Authority (FLRA) had recently invalidated the use of the self-scoring questionnaire system which generated the BQL based on applicants' self-assessments of their experience and qualifications. An Arbitrator had ruled in a national-level grievance that the implementation of the self-scoring questionnaire was in violation of the collective bargaining agreement (CBA) in place between the Union and the Agency. The FLRA upheld that portion of the Arbitrator's decision. Complainant also argued that she was the superior candidate for the position and was more qualified than the selectee, based on her law degree and her work experience and performance. Finally she claimed that a hostile work environment existed in the Huntington Office.
The Agency submitted a brief in opposition to Complainant's appeal in which it argued that the AJ's decision and the Agency's implementation of the decision should be affirmed. It argued that Complainant's reliance on the decision of the FLRA in an attempt to undermine the Agency's legitimate, nondiscriminatory reason was misplaced, as the FLRA's decision "simply found that the Agency's implementation of an electronic system, rather than a paper system, to compile BQLs violated the Agency's collective bargaining agreement (CBA)." It also argued that Complainant had not demonstrated that she was plainly superior to the selectee.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 the 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a hearing
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations, and there was no need to resolve any issues of credibility.
Disparate treatment
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or 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, complainant 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. To establish a prima facie case in a discriminatory non-selection claim, Complainant must show: (1) she is a member of a protected group; (2) she applied and was qualified for the position; (3) she was considered for and denied the position; and (4) another person, not a member of her protected group, was selected for the position. McDonnell Douglas Corp, 411 U.S. at 802-03. We find that Complainant established a prima facie case of race discrimination, in that she applied for the position in question, was qualified, but was not placed on the BQL and not hired, and a candidate not of her race was selected for the Paralegal Specialist position.
We also find that the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant, in that her score after the automated scoring process was not high enough to be included on the BQL, and therefore Complainant was not referred to the selecting official for consideration. We conclude, however, that Complainant has not shown that the Agency's reason, or the use of the automated scoring process itself, was pretext for discrimination. Complainant argued that she was in effect, penalized for answering the questions on the application honestly when she was self-rating her experience level. Complainant has not argued that the Agency had implemented the self-scoring system in order to perpetuate discrimination on a systemic basis or against her personally. She has merely demonstrated that people who are honest may be disadvantaged by others who are not as scrupulous in their actions.
Complainant also argued that the Agency's selection system has been found to be a violation of the collective bargaining agreement, and was invalidated pursuant to the findings of an Arbitrator and the Federal Labor Relations Authority. A review of the decision of the FLRA shows that the system was invalidated because its implementation was in violation of the CBA, not because it was found to be discriminatory in nature. The FLRA decision upheld the Arbitrator's remedy, which provided that those were not selected for positions under the system could file grievances about their non-selections. Complainant's appeal submission includes a copy of the grievance Complainant filed with regard to this non-selection. We note that the Commission has previously found that evidence that a selection process or procedures were implemented in violation of a CBA is not sufficient to invalidate reliance on the selection process as the Agency's legitimate, nondiscriminatory reason, absent evidence that discriminatory intent was present. See Suber v. Dep't of Labor, EEOC Appeal Nos. 0220090001, 0120071022 (Oct. 29, 2009).
Finally, we do not find that Complainant has shown that she was plainly superior to the selectee for the position. Complainant argued that she had a law degree, while the selectee's degree was as a veterinary assistant, and that her work experience was exemplary, as compared to others on the BQL. A review of the record shows that the selectee was a Lead Case Technician, GS-9, a position which entailed oversight of the Senior Case Technicians such as Complainant, and that the selectee had been with the Agency since 2001. Complainant has not shown that her qualifications were so superior to the selectee's for the position at issue that we would be required to make a finding in her favor.
CONCLUSION
Based on a thorough review of the record and of the contentions of the parties on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against 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
November 9, 2012
Date
2
0120122410
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122410