0120160109
03-15-2018
Fidelia F.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Fidelia F.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160109
Hearing No. 560-2014-00041X
Agency No. DAL-12-0569-SSA
DECISION
On September 21, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated August 21, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative (Service Representative), GS-962-8 at the Agency's Oklahoma City Field Office in Oklahoma City, Oklahoma.
On August 8, 2012, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her:
1. based on her race (White)/(American Indian), sex (female) and age (56) when in May 2012, she was not selected for promotion to Social Insurance Specialist (Claims Representative), advertised under vacancy announcement number ST-629840-137-12-DAL, and received no developmental assignments that would have made her better qualified; and
2. based on reprisal for prior EEO activity under Title VII and the ADEA when the Agency denied her representative official EEO representation time on various dates from October 2012 to April 2013.
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Thereafter, the Agency conducted a supplemental investigation on issue 2. Complainant later withdrew her request for a hearing. The Agency then issued a FAD finding no discrimination.
During March and April 2009, the Agency solicited applicants for two slots for the position of Claims Representative at the Oklahoma City Field Office. Only Agency employees were eligible to apply. Claims Representatives conduct interviews and help claimants develop their claims for retirement, survivors and disability benefits and/or supplemental security income. They work with claimants to establish their continuing eligibility for payment, assist claimants in filing administrative appeals, adjudicate claims and authorize them for payment, provide referral services, and identify and investigate potential program abuse. Report of Investigation (ROI), Exh. 13a. The position description for Service Representative indicates that they perform similar work, but generally more at the initial stages, for example it does not indicate they adjudicate claims. Service Representatives also do intake. ROI, Exh. 18.
Including Complainant, the Agency's Center for Human Resources certified 21 applicants as eligible for competitive promotion to the position of Claims Representative, at the GS-9 level, and referred them to the selecting official (SO) (African-American, male, age 47), the District Manager of the Oklahoma City Field Office.
S1 (Black female, age 36) made recommendations on "Candidate Evaluation Forms," which required she rate each candidate she supervised in various competencies, answer narrative questions, and make a recommendation of "Highly Recommended," "Recommended," or "Not Recommended." While S1 highly recommended Complainant and Selectees 1 and 2, she gave Selectee 1 28 "excellent" ratings, Selectee 2 29 "excellent" ratings, and Complainant 24. In the Candidate Evaluation Forms S1 made no negative comments on Selectees 1 and 2, and gave one on Complainant - "[she] could improve in her time management skills. There are times when are [sic.] interviews are lengthy causing long wait times." When asked to identify Complainant's race, S1 responded Caucasian.
Selectee 1 started with the Agency as a GS-7 in September 2007, and a had Bachelor's degree and Master's degree. Selectee 2 started with the Agency as a GS-5 in March 2008, and had Associate's degree and a Bachelor's degree. Complainant started with the Agency as a GS-7 in May 2008, and had Bachelor's and Master's degrees. All three received awards and were Service Representatives, GS-8 at the Oklahoma City Field Office.
After reviewing their applications, considering supervisory recommendations and talking to these supervisors, SO chose Selectee 1 (Black female, age 35) and Selectee 2 (White male, age 26).
The SO stated that in making his selections, he was looking for candidates with demonstrated ability to communicate orally and in writing, to analyze problems, to manage multiple priorities, and showed attention to detail. When asked by the EEO investigator to identify Complainant's race, SO wrote he would say Caucasian, but was unsure.
Complainant's representative (R1) was assigned to the Agency's Tulsa Oklahoma Field Office as a Claims Representative. His first line supervisor (S2) was primarily responsible for approving or denying his requests for EEO official time, and when she was not available S3 acted on his requests.
R1 was President of Local 2502 of the American Federation of Government Employees (AFGE). Under the collective bargaining agreement (CBA) he was designated as a 1040, meaning 50% of his time was for union business. However, the Agency, the union, and/or R1 agreed to a schedule of R1 performing his Claims Representative duties two days a week (Monday and Tuesday). This resulted in R1 being available three days a week (Wednesday, Thursday, and Friday) to conduct labor-management activities, and some time to represent EEO complainants. Under the CBA, this EEO representation did not count against union bank time.2 Pursuant to the CBA, AFGE requested that the Agency grant R1 LWOP for up to three days a week to engage in union activity.
R1 requested official time for EEO representational activity for October 23, 2012, October 29 & 30, 2012, November 26 & 27, 2012, December 3 & 4, 2012, December 17 & 18, 2012, January 14 & 15, 2013, January 28 & 29, 2013, February 4 & 5, 2013, February 25 & 26, 2013, March 4 & 5, 2013, March 18 & 19, 2013, March 25 & 26, 2013, and April 1 & 2, 2013. All these dates were on Mondays and Tuesdays. R1 conceded that for December 17 & 18, 2012, he did not "see" that he requested official time to work on Complainant's case. For March 4 & 5, 2013, S2 indicated that R1 did not list Complainant's name as someone for whom he was doing representational work, and R1 did not dispute this. For October 23, 2012 and each subsequent pair of dates, except perhaps December 3 & 4, 2012, R1 requested to work on multiple EEO cases. The Agency partly granted R1's request for official time on October 29, 2012, since he had a short time to complete an EEO matter, approved his request for November 27, 2012, partly approved his requests for February 4, 2013 and March 25, 2013 (three hours each day) to prepare and participate in prehearing conference calls. When denying official time the Agency explicitly offered R1 the alternative option of taking official time on the Wednesday, Thursday, and Friday of the same week. The exceptions to this were for October 23, 2013 (the Agency offered R1 the alternative option of Wednesday of the same week), February 4 & 5, 2013, (S3 did not explicitly offer alternate dates), and April 1 and 2, 2013 (S4, who succeeded S2, asked R1 to break down by case how much official time he was requesting, and the record does not show R1 did so). S3 stated R1 was aware he was needed to do perform his Agency job duties on Mondays and Tuesdays and R1 was available other days for EEO and Union activity. S4 approved R1's request for LWOP for April 1 & 2, 2013. S2 stated that she generally denied R1's requests to swap EEO official time for approved LWOP on Mondays and Tuesdays because he was supposed to perform Agency work those days. SROI, Exh. 6, at 3 for Season H. v. Social Security Administration, EEOC Appeal No. 0120151839 (Agency No. DAL-12-0563-SSA) (May 23, 2017).3
On issue 1, the Agency found that Complainant did not make out a prima facie case of discrimination. Assuming arguendo that she did, the Agency found that the SO articulated legitimate, nondiscriminatory reasons for his choices, i.e., the selectees had supervisory backgrounds and volunteered to do specified duties.
Complainant lauded her qualifications. Citing legal precedent, the Agency found that to prove pretext based on relative qualifications, Complainant would have to show hers were so plainly superior to support an inference of discriminatory non-selection, and she did not do this.
Regarding Complainant's claim that she did not receive developmental assignments that would have made her better qualified for the position at issue, the Agency found that Selectee 1 took the initiative to seek out the specified assignments which she performed and by the time Complainant made her requests, and when sampling became available after Selectee 1 was promoted, Complainant was assigned sampling.
On issue 2, the Agency accepted managements' explanations its handling of R1's requests for EEO official time, and found no reprisal discrimination. Complainant then filed the instant appeal.
She argues in part that her qualifications were clearly superior. She argues that she proved discrimination on issues 1 and 2. In opposition to the appeal, the Agency argues that it properly found no discrimination and reprisal.
ANALYSIS AND FINDINGS
Issue 1
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra.
The SO explained that in making his choice, he considered the recommendations of each candidates' supervisor. While S1 highly recommended Complainant and Selectees 1 and 2, she gave the selectees higher scores and included only one negative remark for the three, writing "[Complainant] could improve in her time management skills. There are times when are [sic.] interviews are lengthy causing long wait times." This is consistent with the SO's comment that although he did not recall the specifics of Complainant's application, when he reviewed them in the past he advised her they were too wordy. We reviewed the applications and Complainant and Selectees 1 and 2, and the later applications were more concise.
In explaining his choice, the SO also stated that Selectee 1 went above and beyond her position by volunteering for the additional duties of work sampling clerk and third party draft cashier, demonstrating that she could manage multiple priorities. As head cashier for the Oklahoma City Field Office, Selectee 1 initiated in-office payment to recipients, "BVS" verification requests, and administrative reimbursements. ROI Exh. 13j, at 3. The SO indicated that in choosing Selectee 1 he found it favorable she had a background as a supervisor in a previous job (prior to coming to the Agency). Selectee 2 was also a supervisor in a previous job prior to working at the Agency. ROI, Exh. 13k, at 3. Complainant did not reference being a supervisor in her application.
Complainant contended that she was better qualified than Selectee 1 because she had conduct issues. Complainant stated that she witnessed Selectee 1 disappear from the window without telling anyone sometimes, regularly take extended breaks, and put customers on hold while taking personal calls. She stated that she received several complaints by telephone and mail from customers complaining that Selectee 1 was rude and would not assist them, and she turned over all these complaints to management. In Selectee 1's Candidate Evaluation Form, S1 rated her "good" for holds self and others accountable for rules and responsibilities, not "excellent" as she rated Complainant on this factor. S1 commented in the above form that Selectee 1 made a complete transformation over the last two years regarding her interpersonal skills, and now always effectively handles conflict with the public and coworkers in a positive manner. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Here, the qualifications of Selectees 1 and 2, and Complainant were quite similar. While Complainant pointed to a conduct issue on Selectee 1, Complainant's qualifications are still not such to raise the specter of pretext or discrimination, and no other evidence in the record does so.
Complainant contended that Selectee 1 was favored in the receipt of developmental assignments that helped her get selected. Selectee 1's predecessor supervisor stated that around August 2010, Selectee 1 asked to be added to the Cashier roster, so he did so. Agency's Motion for Decision Without a Hearing (April 1, 2014), Exh. 3. Selectee 1 had a background in this. In her prior job with Langston University, she worked as the Bursar monitoring and handling the operations of all cashflow for the University, and supervised three cashiers and two accountants. ROI, Exh. 13j, at 4. Complainant stated that in the week after Selectee 1 started work sampling, she asked S1 if she could perform Cashier and work sampling duties, and S1 replied that another supervisor assigned those duties to Selectee 1, and the subject was dropped. Complainant indicated that she did not ask to do these duties before Selectee 1 started performing them because she was not aware that a Service Representative was permitted to do them. Complainant stated that after Selectee 1 was promoted, S1 asked Complainant if she wanted to do work sampling because Selectee 1 was too busy, and Complainant started performing this duty.
The Agency articulated a legitimate, nondiscriminatory reason for why Selectee 1 was assigned the duties of Cashier and work sampling, i.e., she made requests for them to supervisors other than S1. Complainant has failed to show that this reason was pretext to mask discrimination. Further, in her application, Complainant identified details and developmental assignments she performed which she represented therein were relevant to the Claims Representative position, e.g., serving as a mentor daily; and conducting one on one observation and instruction to assure proficiency in all aspects of the service representative workload. Complainant suggested she did this for trainees assigned to her. This further vitiates against a finding that the Agency favored Selectee 1 in giving developmental assignments. Complainant has not proven discrimination on issue 1.
Issue 2
The provision of official time is governed by 29 C.F.R. � 1614.605, and regards complaint processing. Because the provision of official time regards complaint processing, we will not address whether the denial thereof was discriminatory. Instead, we will review whether the Agency complied with 29 C.F.R. � 1614.605. The actual number of hours to which a complainant and her representative are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-17 (as revised Aug. 5, 2015). Given that R1 was only scheduled to do Agency work on Mondays and Tuesdays, much of which he took off to conduct non-Agency business, the Agency did not violate the Commission's official time regulation by steering him to use official time on Wednesdays, Thursdays, and Fridays. The record reflects that the Agency balanced this against complainants' need for representation when things were pressing.
We AFFIRM the finding of no discrimination in the FAD on issue 1, and find the Agency complied with 29 C.F.R. � 1614.605 regarding the provision of official time to R1.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 15, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Under the CBA, the union had an annual bank of 250,000 hours of official time reserved for union representational activity, i.e., term and mid-term negotiations, dispute resolution, and general labor management relations meetings. Official time for representing employees in statutory EEO complaints is regulated by 29 C.F.R. Part 1614.
3 R1 submitted a memorandum he received in late March 2013, by S4. She wrote that management would no longer frequently approve LWOP in the manner it had in the past. She wrote that the Agency agreed to schedule R1 to perform Agency work on Mondays and Tuesdays, was told LWOP was to do Council 220 work, and from now on his requests to perform Council 220 work on LWOP should be annotated with "to perform Council 220 work." SROI for Season H., Exh. 9 at 8. S2 stated that when R1 had pressing EEO representation matters, the Agency allows him to swap EEO official time for LWOP, but when he could take care of things on the upcoming Wednesday, they would prefer he perform his EEO representational activity then. Id., Exh. 6, at 3. In May 2014, R1 stated he has not performed any of his Claims Representative duties since August 2012, instead doing union work and representing EEO complainants. Id., Exh. 10, at 1.
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