0120090212
06-21-2012
Reginald L. Sydnor, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Reginald L. Sydnor,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120090212
Agency No. 2008010
DECISION
On October 16, 2008, Complainant filed an appeal from the Agency's August 21, 2008, final decision concerning his 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 AFFIRMS the Agency's final decision.
BACKGROUND
From March 3, 1997, through December 31, 1998, Complainant was employed by the Social Security Administration (SSA) as an Administrative Law Judge (ALJ).
On January 13, 1998, the Office of Personnel Management (OPM or the Agency), notified Complainant that after it conducted a suitability determination, it concluded that Complainant was not suitable for federal service because he intentionally falsified information on his application and related forms during his appointment process.1 Complainant was removed from his ALJ position and debarred from competitive federal service for three years, or until January 13, 2001.
On June 11, 1998, the Merit Systems Protection Board (MSPB) affirmed the Agency's actions. Sydnor v. Office of Personnel Management, MSPB No. PH-0731-98-0188-I-1, 81 M.S.P.R. 656 (June 11, 1998). Complainant then filed a suit in federal court against OPM and SSA, alleging that the actions of these two agencies were racially discriminatory2 in violation of Title VII of the Civil Rights Act of 1964. In October 2009, the District Court of Maryland granted the Agencies' motion for summary judgment, which was affirmed by the U.S. Court of Appeals for the Fourth Circuit in March 2000. Sydnor v. LaChance, 210 F.3d 362 (4th Cir.2000).
Between 2001 and 2007, Complainant applied and was not selected for numerous ALJ positions with SSA and the U.S. Department of Health and Human Services (DHHS).3 Both SSA and DHHS confirmed that Complainant received veterans' preference and was considered for the positions, but was ultimately not selected. Complainant alleges that he was not selected for the positions because OPM failed to certify him as eligible for re-employment following the period of his disbarment from federal service.
In 2007, Complainant retook the ALJ examination in an effort to be hired as a new SSA ALJ. On October 30, 2007, Complainant was notified by OPM that he scored 45.21, including his veterans' preference points, on an ALJ examination, which was significantly lower than his previous examinations.
On or around December 5, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when:
1. From January 13, 2001, to October 30, 2007, the Agency engaged in a pattern of actions to maintain Complainant in a status unsuitable for Federal employment; and
2. On October 30, 2007, Complainant received an inappropriately low score on the Administrative Law Judge (ALJ) examination.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, 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 him to discrimination as alleged. Complainant now appeals that decision to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that evidences establishes that OPM has purposefully blocked his efforts to have his suitability redetermined, and he asserts that OPM has intentionally retained him in the status of "unsuitable for federal employment" beyond the maximum three year regulatory debarment period. Complainant also contends that the record establishes that his low score on the 2007 ALJ examination was because of his race and his prior protected EEO activity. In opposition to the appeal, the Agency contends that Complainant did not establish by a preponderance of the evidence that discrimination existed.
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").
Complainant alleged that he was discriminated against on the bases of his race and in reprisal for his prior protected EEO activities when the Agency kept him in an "unsuitable for federal employment" status, and when he received an inappropriately low score on the ALJ examination. 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, he 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 established his prima facie case of race and reprisal discrimination.
The Agency offered legitimate, non-discriminatory reasons for its actions. With regard to the allegation that the Agency discriminated against Complainant when it maintained him in the status of "unsuitable for federal service," the Agency stated that under current suitability regulations found at 5 C.F.R. � 731.204(b), hiring agencies may make suitability redeterminations themselves. OPM stated that the practice is that a disbarred individual who wants their federal employment statutes reconsidered must first apply for an ALJ position and a federal agency must want to select him for the position before OPM will issue a redetermination about that individual's suitability for federal employment. In other words, a hiring agency must refer a case to OPM and state that it wishes to select a previously disbarred individual before OPM will make a redetermination. The Agency stated that here, no hiring agency ever contacted OPM to inform them that they wished to select Complainant for an ALJ position, and as a result OPM has not redetermined whether Complainant is suitable for federal employment.
With regard to the allegation that Complainant was discriminated against when he was issued an inappropriately low score on the 2007 ALJ examination, the Agency stated that the ALJ examinations assure a "blind assessment" because the examination raters only see the last four digits of an applicant's social security number and no other personal information. As a result, there is no opportunity for disparate treatment in the scoring process.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his 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 him because of his race and prior protected EEO activity.
Complainant alleges that OPM has purposefully thwarted his efforts to have his suitability redetermined by OPM. Complainant asserts that OPM has intentionally retained him in a gridlocked status of unsuitable for federal employment beyond the maximum three year regulatory debarment period. The record indicates that SSA contacted OPM to determine whether OPM had to redetermine that Complainant was eligible for federal employment before SSA could even consider him for an ALJ position. However, there is no indication that SSA or any other hiring agency indicated that it wished to hire Complainant for an ALJ position, which would have triggered the redetermination process within OPM. Beyond Complainant's bare assertions and subjective beliefs, there is no evidence that would establish by a preponderance of the evidence that Complainant's race or prior protected activity played a role in OPM's actions with regard to redetermining whether Complainant is suitable for federal service.4
As proof of pretext for his allegation that he was given an inappropriately low score on the ALJ examination in 2007, Complainant contends that he scored 101.4 on a previous ALJ examination and was rated within the top examination percentiles. Complainant alleges that his 2007 exam was intentionally scored low to ensure that he would not be considered by an employing agency for an ALJ position. A review of the record reveals that the ALJ examinations changed prior to 2007, and previous ALJ examinations utilized differed assessment instruments than the 2007 ALJ examination. For example, the previous examinations used a scoring scale of 70 to 100, while the 2007 examination scoring scale was 1 to 100. Therefore, a difference in the scores of the 2007 examination and previous examinations, alone, does not establish that discrimination existed. A review of the record establishes that the portion of the ALJ examination that is sent to raters for scoring does not ask applicants to identify their race, national origin, gender or date of birth. There is no evidence in the record that would indicate that the ALJ examination raters took Complainant's race or prior protected activity into consideration when it scored his examination. Beyond Complainant's bare assertions and subjective beliefs, there is nothing in the record that would establish by a preponderance of the evidence that Complainant's race or his prior protected activity played a role in his low ALJ examination score.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision because 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
06/21/2012
__________________
Date
1 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. OPM also has the authority to determine whether an ALJ is unsuitable for federal employment, remove them from their positions, and disbar them from competitive federal service. 5 C.F.R. � 731.
2 We note that Complainant's allegation in a previous lawsuit that the Agency discriminated against him on the basis of his race constitutes prior protected activity under the anti-retaliation provision of Title VII of the Civil Rights Act of 1964.
3 Complainant filed EEO complaints regarding some of these non-selections, in which we found on appeal that Complainant did not establish that he was discriminated against. See Sydnor v. Dep't of Health and Human Services, EEOC Appeal Nos. 0120083881 and 0120093429 (December 27, 2010).
4 We note that Complainant alleged that another SSA ALJ who falsified his experience and grade level in his application was suspended rather than removed and disbarred. To the extent that Complainant is alleging that his removal and disbarment were discriminatory, we find that this allegation goes towards claims that were previously decided by the MSPB, the District Court of Maryland, and the U.S. Court of Appeals for the Fourth Circuit. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See De Jesus v. U.S. Postal Serv., EEOC Appeal No. 0120102629 (Sep. 14, 2010); Matthews v. U.S. Postal Serv., EEOC Appeal No. 0120101792 (August 10, 2010) Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998). Therefore this allegation will not be considered in this appeal.
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0120090212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090212