Gloria B. Wesley, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01980437 (E.E.O.C. Oct. 14, 1999)

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).