01a55059
01-06-2006
Bernethia Johnson, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Bernethia Johnson v. Social Security Administration
01A55059
January 6, 2006
.
Bernethia Johnson,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A55059
Agency No. 03-0375-SSA
Hearing No. 130-2005-00007X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that complainant, a Legal Assistant at the agency's
Office of Hearings and Appeals, in Montgomery, Alabama, applied for
the position of Paralegal Specialist. She made the "Well-Qualified
List" but was not selected for the position. Instead, the Selecting
Official, the Chief Administrative Law Judge, chose the selectee.
Complainant contacted the EEO Office believing that the selection process
constituted discrimination. Subsequently, complainant filed a formal
EEO complaint on July 8, 2003, alleging that the agency discriminated
against her on the bases of race (African-American), age (October 16,
1955), color (brown), sex (female), and reprisal (prior EEO activity)
when she was not selected for the Paralegal Specialist position, GS-9,
that was advertised under vacancy announcement number OHA-32-03.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). At the hearing stage, complainant indicated
that she only wished to pursue the bases of race and reprisal.
The AJ conducted a hearing on the matter. Subsequently, the AJ issued her
decision finding no discrimination. The AJ concluded that complainant
established a prima facie case of racial discrimination because she
is a member of a protected class, she was qualified for the position in
question, and the selectee (white, no prior EEO activity) was not a member
of the same class. As to the basis of retaliation, the AJ determined
that complainant had participated in the EEO process some three years
prior to the selection at hand. However, the AJ noted that the first
line supervisor's (FL Supervisor) testimony showed that complainant's
prior EEO activity was still on the minds of management. The Selecting
Official also admitted that he knew of complainant's prior EEO activity at
the time he made his selection decision and believed that complainant's
promotion to her current position was a result of this EEO activity.
Therefore, the AJ found that complainant established an inference of a
causal link between her prior EEO activity and the selection. As such,
the AJ concluded that complainant established a prima facie case of
unlawful retaliation.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the Selecting
Official said he chose the selectee over complainant because complainant
had performance problems including misfiling documents, improper use
of tenses and other grammatical errors in her writing, not getting work
done in a timely manner, and low productivity.
However, the AJ went on to determine that the Selecting Official's
testimony was not consistent and often times contradicted. The AJ
noted that the Selecting Official testified that he did not review the
applications prior to making his selection, did not review any type of
document prior to making his decision, and did not receive any opinions
or recommendations from the Administrative Law Judges concerning the
selection. Later the Selecting Official recanted some of this testimony,
saying he did review some documentation, although was not clear what
it consisted of. The AJ also found that complainant's second line
supervisor (SL Supervisor) provided testimony that contradicted that of
the Selecting Official, when he said that he and the Selecting Official
did review the applications together, using them as writing samples to
look for grammatical errors. The SL Supervisor noted that he did not
find any problems with the complainant's application. Because of the
inconsistencies and reversals in the Selecting Official's testimony, the
AJ found that the Selecting Official not very credible as a witness.
Further, based in part on the credibility problems with the Selecting
Official's testimony, the AJ found that complainant established pretext
as to her alleged filing problems, grammatical errors, and timeliness
problems. As to the misfilings, the AJ pointed to the hearing record
which indicated that as many as ten to twenty individuals could touch
a file during the agency's hearing process indicating it might be
difficult to know who specifically was responsible for a misfiling.
He also noted that most of the notes regarding alleged mishandling of
filing were dated after complainant was not selected for the position.
Regarding complainant's alleged grammatical errors, the AJ found that
the Selecting Official rarely saw the writing of the Legal Assistants
and said he had not reviewed any other documents regarding for quality
of writing prior to the selection. As to alleged timeliness problems,
the AJ again found that the documentation proffered to support this claim
also postdated the selection. Therefore, pretext was found as to these
reasons offered by the agency for not selecting complainant.
The AJ then turned to the agency's final reason for the selection
of selectee over complainant, namely the issue of productivity.
The AJ determined that complainant did not show that the productivity
levels reason was pretext. Documentary evidence offered by the agency
indicated that the selectee's production average was 30.25 folders per
month while complainant's was 14.9. Although a co-worker testified
that complainant was assigned a significant number of big files, the SL
Supervisor indicated that complainant was not assigned the larger cases.
Based on this evidence and the testimony of the SL Supervisor, who stated
that complainant was not one of the runners-up for the position, the AJ
concluded that complainant had not established that the selection of the
selectee constituted unlawful racial discrimination and/or retaliation.
The agency's final order implemented the AJ's decision. Complainant
appealed without comment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
conclusion that no discrimination occurred is not supported by substantial
evidence in the record. We do find that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant presented evidence to
establish her prima facie cases of unlawful racial discrimination
and retaliation. Moreover, although the Selecting Official proffered
legitimate, nondiscriminatory reasons for his actions, the AJ's finding
of pretext as to three of those reasons is supported by the substantial
evidence of the record. The Commission, however, finds that the weight of
evidence of record also establishes the pretextual nature of the Selecting
Official's final proffered reason for not selecting the complainant.
The Selecting Official testified that the final reason he did not
select complainant was based on her low productivity. However, the
Selecting Official was unclear in his testimony as to how he determined
complainant's productivity. The record is clear that he did not have any
personal knowledge of the relative productivity levels of the candidates.
The Selecting Official also testified that he did not review any agency
documents in order to make his selection. While he later recanted and
said he might have reviewed some documentation on productivity, he was
not clear what he reviewed. While the record indicates there was agency
documentation that complainant's productivity level was lower than the
selectee's, there is no evidence that the Selecting Official relied
on this document in the selection process, rather than using it as an
after-the-fact justification for his decision. Moreover, although the FL
Supervisor might have had information about complainant's productivity,
the Selecting Official stated during the hearing that he had not put much
weight on any information gleaned from the FL Supervisor. Moreover, the
Selecting Official stated that was aware that pursuant to the agency's
collective bargaining agreement, he could not use numerical productivity
levels for assessment criteria when comparing candidates.
Therefore, based on the totality of the record, we find that it is
more likely than not that the Selecting Official did not make the
decision to pass over complainant because he perceived a problem with
her productivity. As such, the Commission concludes that complainant
has established that the agency's reasons were pretext for unlawful
discrimination and retaliation. See Reeves v. Sanderson Plumbing
Products, Inc., 120 S.Ct. 2097 (2000) (finding that a prima facie case
of discrimination, combined with evidence to find that an employer's
reasoning is false, is sufficient to support a finding of discrimination).
Finally, we note that the SL Supervisor testified that complainant was not
one of the runners-up for the position. However, the record contains
only the applications and assessment criteria scores for complainant
and the selectee. There is no evidence in the record to substantiate
the SL Supervisor's testimony. Therefore, we will not rely on this
unsupported assertion. Accordingly, we conclude that the evidence of
record established that it is more likely than not that the agency's
decision in this matter was motivated by unlawful discrimination or
retaliation for her prior EEO activity.
CONCLUSION
Therefore, after a careful review of the record, we reverse the agency's
final order and remand the matter in accordance with the orders below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
The agency shall retroactively promote complainant to a GS-9 Paralegal
Specialist position, retroactive to the effective date of the May 2003
selection under vacancy announcement number OHA-32-03.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of her claim for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. � 1614.108(f).
The agency shall take corrective, curative, and preventative actions to
ensure that violations of federal EEO law will not recur, including, but
not limited to, providing training in employment discrimination law for
the agency officials involved in the decision not to select complainant.
The Commission does not consider training to be a disciplinary action.
The agency shall consider taking appropriate disciplinary action against
the responsible management official. The Commission does not consider
training to be disciplinary action as noted above. The agency shall
report its decision to the compliance officer. If the agency decides
to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall
set forth the reason(s) for its decision not to impose discipline.
If the responsible management official has left the agency's employ,
the agency shall furnish documentation of their departure date.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its Office of Hearings and Appeals, in
Montgomery, Alabama, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
January 6, 2006
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated ,
which found that a violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. has occurred at this
facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Social Security Administration, Office of Hearings and Appeals,
in Montgomery, Alabama, supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The Social Security Administration, Office of Hearings and Appeals, in
Montgomery, Alabama, has been ordered to remedy an employee affected by
the Commission's finding that the agency discriminated against her. As a
remedy for the discrimination, the agency was ordered, among other things,
to provide the affected employee compensatory damages and back pay.
The Social Security Administration, Office of Hearings and Appeals,
in Montgomery, Alabama, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Social Security Administration, Office of Hearings and Appeals, in
Montgomery, Alabama, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 1614