01980437
10-14-1999
Gloria B. Wesley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Gloria B. Wesley, )
Appellant, )
) Appeal No. 01980437
v. ) Agency No. SSA-737-94
) Hearing No. 150-95-8545X
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
retaliation based on prior EEO activity as well as discrimination based
on race (Black) and age (54), in violation of Title VII of the Civil
Rights Act of 1964, 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. Appellant alleges she was discriminated against
when: (1) on April 18, 1994, she was not selected for the position
of Lead Hearing Clerk, GS-986-6; and (2) on May 23, 1994, she was not
selected for the position of Hearing Assistant. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant began her employment with the
agency in 1979. In 1992, she obtained a hardship transfer to the
agency's Office of Hearings and Appeals in Tampa, Florida, where she
was employed as a GS-986-05 Hearing Clerk. Believing she was a victim
of discrimination, appellant sought EEO counseling and, subsequently,
filed a formal complaint on July 1, 1994, alleging that the agency had
discriminated against her as referenced above. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ). Pursuant to 29
C.F.R. �1614.109(e), the AJ issued a Recommended Decision (RD) without
a hearing, finding no discrimination.
The AJ concluded that appellant established a prima facie case of
discrimination based on race and age by demonstrating that similarly
situated employees who were younger and of a different race were selected
for the positions at issue.<1> The AJ further concluded that appellant
established a prima facie case of retaliation with respect to the Hearing
Assistant position because she engaged in prior EEO activity in January
1994 of which the selecting official for that position was aware, and
which was sufficiently proximate in time to her non-selection to create
an inference of a causal connection.<2>
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory and nonretaliatory reasons for its actions, namely, that
the two selectees had superior qualifications to appellant. The Hearing
Office Manager (SO-1), who served as the selecting official for the Lead
Hearing Clerk position,<3> attested that the selectee "demonstrated
superior knowledge, skills and abilities [KSAs] in organization,
research, and problem solving" compared to appellant, had a superior
technical background, and her "performance in the interview was more
indicative of the applicable [KSAs] than that of [appellant]." SO-1
further attested that during the interview appellant had "difficulty in
responding relevantly to some questions." Also, when personally observing
appellant's work performance, SO-1 had observed appellant display some
"unwillingness to accept additional responsibility and leadership," a
negative attitude, and difficulty accepting change. The Hearing Office
Supervisor (SO-2), who served as the selecting official for the Hearing
Assistant position, testified that she rated applicants by first assigning
a weight to each of the critical elements from the job description,
and an additional category for time-in-service and performance awards.
Hearing Transcript (HT) at 170. She testified that she gave particular
weight to analysis, writing, and verbal skills because she felt
they were particularly important for the Hearing Assistant position.
HT at 206. She also testified that she gave less weight to applicants'
time-in-service because she determined it was not as critical as case
analysis skills. SO-2 rated the applicants in these areas based on
their applications as well as her observations of them in the workroom
and in training classes. HT at 170-171. Using these rating numbers,
SO-2 then arrived at a percentage score for each applicant. She did not
interview any of the applicants. HT at 171. SO-2 also testified that
the selectee was "substantially" more qualified than appellant, because
the selectee worked well independently, was resourceful, had obtained
a college degree while working, was taking courses in management,
and had been rated very highly on her last performance appraisal.
SO-2 also testified that she had received complaints from two judges
regarding appellant's work performance, in particular regarding her
lack of attention to detail. HT at 176-177. Additionally, in some
training classes appellant participated in with SO-2, appellant displayed
difficulty understanding instructions and assignments, and had required
assistance or extra time in completing various tasks.
The AJ further found that appellant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found insufficient appellant's assertion that due to their
personal relationships with the selecting officials, the selectees were
"groomed" for the positions at issue. Appellant alleged that she was
not favored in this manner and was thereby effectively eliminated from
contention for the positions at issue. Although appellant contended
that the selectees unfairly benefitted from being able to participate
in training sessions and overtime opportunities which she was denied,
appellant herself testified that she was provided with various training
and overtime opportunities in which she elected not to participate.
HT at 56, 57, and 162. In addition, appellant was offered a detail
to a Hearing Assistant position in March, 1994, but did not take it,
stating that she "prefer[red] to wait until [her] EEO complaint [was]
completed." See Complainant's Exhibits 1, 42. To the extent appellant
alleged that the selectees were chosen based on their friendship with
the selecting officials, the AJ noted that pre-selection, unless based
on unlawful discrimination or retaliation, is not prohibited under the
governing statutes. See, e.g., Goostree v. State of Tennessee, 796
F.2d 854 (6th Cir. 1986). To the extent appellant also raised at the
hearing an allegation of disparate treatment based on race with respect
to accommodation of medical needs, the AJ found that this claim could
not be considered because it had not been accepted for investigation.
Further, the AJ found that appellant's testimony regarding an alleged
retaliatory comment by SO-1 during the Lead Hearing Clerk interview
was insufficient to prove retaliatory intent. Specifically, appellant
testified that during her interview, SO-1 "brought up about my EEO
complaint, which I didn't think was irrelevant, how could I work with
management filing an EEO complaint?" HT at 35. Upon further questioning,
it was unclear from appellant's testimony whether or not SO-1 allegedly
made specific reference to appellant's EEO complaint, or only inquired
about her ability to get along with management. HT at 51-52. Although
SO-1 was not at the hearing, the AJ noted that the record contains her
list of questions asked at each interview. According to the list for
appellant, she was asked five questions regarding her ability to get along
with management and subordinates, and was specifically asked about "the
fact that you have been very vocal and openly critical of the management
in this office." Complainant's Exhibits 1, 20. These questions were also
listed as having been asked during the interviews of other applicants,
although on some lists some of the questions were modified or crossed out
and marked not applicable. Complainant's Exhibits 1, 21-23. However,
even the selectee was apparently asked whether she could function as
a manager where "you have already gone along with negativity [toward]
management." The AJ found that because such questions were asked of
all candidates, and because appellant conceded that she had made many
negative comments to her managers and co-workers regarding what she
considered to be a disorganized office and ineffective management style,
the questions asked of appellant as recorded by SO-1 did not evidence
retaliatory intent.
The agency's FAD adopted the AJ's RD. It is from the FAD that appellant
now appeals.
On appeal, appellant has submitted no contentions addressing the merits
of her appeal. Appellant has, however, advised the Commission that the
attorney who represented her in her hearing before the AJ has failed
to respond to her communications or to provide her with a copy of the
hearing transcript in aid of preparing an appellate brief. The agency
requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to
present evidence that any of the agency's actions were in retaliation
for appellant's prior EEO activity or were motivated by discriminatory
animus toward appellant's race or age. We discern no basis to disturb
the AJ's findings, which were based on a detailed assessment of the
record and the credibility of the witnesses. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996).
Finally, as noted above, by letter dated February 20, 1998, appellant
advised the Commission that her former attorney has failed to respond to
her communications or provide her with a copy of the hearing transcript in
aid of preparing her appellate brief. We note that in the same letter,
appellant did provide the name and address of her new counsel, but the
record contains no subsequent correspondence from either appellant nor any
counsel on her behalf addressing the merits of the instant appeal. The
Commission's Regulations provide a right to representation, but do not
require adequate or competent representation. See Holmes v. United
States Postal Service, EEOC Request No. 05890784 (October 13, 1989);
Harris v. United States Postal Service, EEOC Request No. 05870239 (July
23, 1987). Accordingly, appellant's assertions regarding her former
attorney's alleged failure to provide her with the hearing transcript
cannot be addressed in this forum, and do not alter our disposition on
the merits of the instant appeal.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
October 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1One of the
competitive selectees was Caucasian and the other
was Asian-American. They were 35 and 42 years of
age respectively. Appellant does not contest the
selection of the third, non-competitive selectee
for the position.
2Although the AJ concluded that appellant had conceded at the hearing
that her retaliation claim was limited to her non-selection by SO-1 for
the Lead Hearing Clerk position, we note that the transcript is not clear
in this regard, and appellant did at some points in the hearing address
retaliation with respect to the Lead Hearing Clerk position as well. See,
e.g., Hearing Transcript (HT) at 34-35. Nonetheless, appellant failed
to establish that SO-2 knew about her prior EEO activity, and therefore
appellant has failed to establish a prima facie case of retaliation
with respect to her non-selection for the Hearing Assistant position.
See Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.) aff'd, 545 F.2d 222 (1st Cir. 1976).
3SO-1 was unavailable to attend the hearing but her affidavit was admitted
into evidence, together with the other affidavits and exhibits contained
in the Record of Investigation (ROI).