Jessie S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 27, 2018

0120161047 (E.E.O.C. Mar. 27, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jessie S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120161047

Hearing No. 461-2015-00058X

Agency No. DAL-14-0744-SSA

DECISION

On January 19, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 8, 2016, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Technical Expert,
GS-12, at the Agency’s Field Office in Kenner, Louisiana.

On November 13, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her in reprisal for her prior protected EEO activity under the
ADEA when:

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.
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1. On July 31, 2014, Complainant was notified she did not make the Best Qualified list
for the Dallas Region Development Program, Area 2, Vacancy Announcement No.
DRLDP-113889.

Complainant claimed that she was discriminated against on the bases of her age (over 40) and
reprisal when:

2. On August 27, 2014, Complainant became aware that she was not selected for the
position of Operations Supervisor, GS-12, FT 1162056 in the New Orleans office.

3. In October 2013, Complainant was displeased with her supervisor because he puts too
much work on her.

4. In August 2013, Complainant was not selected for the Dallas Region Development
Program.

5. In or around August 2013, Complainant was spoken to in a demeaning and
derogatory manner in front of her peers.

6. In or around May 2013, Complainant was assigned too much work and given the
responsibility to mentor two coworkers.

7. On an unspecified date in 2012, Complainant’s District Manager expressed
displeasure with her transfer to the Kenner office, her lack of leave, and she had a
copy of Complainant’s 2007 hardship letter.

8. Since January 2012, Complainant has applied for fifty positions and has not been
recommended for selection.

The Agency accepted claims (1-2) for investigation. Claims (3-8) were dismissed pursuant to 29
C.F.R. § 1614.107(a)(2) on the grounds that Complainant did not initiate contact with an EEO
Counselor in a timely manner. At the conclusion of the investigation, the Agency provided
Complainant with a copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).

Initially, the Agency concurred with its dismissal of claims (3-8) on the grounds of untimely
EEO Counselor contact. The Agency stated that Complainant did not initiate contact with an
EEO Counselor until July 31, 2014, after the expiration of the 45-day limitation period. The
Agency determined that Complainant failed to prove that it subjected her to discrimination as
alleged. With regard to claim (1), Complainant applied for the Dallas Region Leadership
Development Program in June 2014. The Agency stated that the position was entry into an
eighteen-month managerial program to enable securing higher positions on a management level.
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Complainant did not make the Best Qualified list for the Program. The Agency noted that
Complainant claimed that the District Manager has impeded her efforts to be selected for other
positions because she disagreed with Complainant being granted an EEO settlement of a transfer
to another field office.

Complainant’s Supervisor stated that he rated each of the three Claims Representatives under his
supervision who applied for the Program, including Complainant. According to the Supervisor,
Complainant did not possess the best teamwork skills and that there was tension in the office
about her lack of dependability in processing technical workloads. The Supervisor stated that he
rated Complainant and another Claims Representative around 3.5 and 3.8 on a scale of 1-5. The
Claims Representative who received the position was rated in the range of 4 by the Supervisor.
Complainant’s second-line supervisor stated that the recommendations she issued for the other
two applicants probably did differ from Complainant’s because the other two did not question
work assignments. A Human Resources Specialist stated that the cut off score to make the Best
Qualified list was 94 and Complainant received a score of 83. The Agency stated that the
District Manager asserted that she considered Complainant not approachable and that she cannot
work as part of a team.

With respect to claim (2), Complainant applied for the position of Operations Supervisor, GS-12,
in the New Orleans office in May 2014. Complainant claimed that she had more job experience
and Agency knowledge than the selectee. The Agency noted that Complainant argued that her
age was a factor in light of the fact that the selecting official chose two supervisors over the past
few years, and both were under forty years of age. The selecting official denied that he was
aware of Complainant’s age or prior EEO activity. According to the selecting official, he was
seeking a candidate with a strong ability to lead and develop others, who would nurture a
conducive environment for teamwork, and work well with others who have different work
habits. The Agency noted that the selecting official also stated that he sought a candidate who
would deal well with pressure and stress while remaining positive and persistent. The Agency
stated that the selectee was 32 years of age.

According to the selecting official, Complainant met the basic requirements for the position. The
Agency stated that the District Manager did not rate Complainant as highly as other candidates.
The Agency stated as to the ratings in key skill areas that the selectee was rated a “5” and
Complainant a “3” in ability to lead and develop others, and how the candidate deals with
pressure and stress. The Agency explained that the selectee received a “5” and Complainant was
rated “2-3” in how the candidate fosters an environment for teamwork, and does the candidate
work well with differing work habits/personalities. Further, the selectee was rated “highly
recommend” and Complainant was rated “recommend.”

The Agency determined that Complainant failed to set forth a prima facie case of reprisal with
respect to claim (1). The Agency reasoned that Complainant’s prior EEO activity occurred in
2011 but her nonselection did not occur until approximately three years later, thus negating a
nexus between the prior EEO activity and the nonselection. Assuming arguendo Complainant
had established a prima facie case of reprisal, the Agency determined that it articulated a
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legitimate, nondiscriminatory reason for its selection. According to the Agency, Complainant’s
ranking was lower than the cut off score of 94, and only those candidates who rated 94 or above
were referred for selection. With respect to Complainant’s argument that her performance was
rated a 4.5 by her Supervisor and that he should have rated her higher for the Program, the
Agency stated that the Supervisor could not have been motivated by Complainant’s prior EEO
activity given that he was not aware of such activity at the time he completed the questionnaire
associated with the Program. The Agency stated that Complainant failed to show that the
Human Resources official and her Supervisor were aware of her prior EEO activity and therefore
she failed to establish pretext.

As for claim (2), the Agency determined that Complainant failed to establish a prima facie case
of reprisal. The Agency stated that the prior EEO activity of which the selecting official was
aware occurred in 2003, and therefore no nexus existed with the nonselection in 2014. The
Agency determined that Complainant set forth a prima facie case of age discrimination. The
Agency further determined that it articulated a legitimate, nondiscriminatory reason for
Complainant’s nonselection. The Agency cited the selecting official’s explanation that
Complainant was not selected due to the ratings provided by the District Manager that were
much lower in the areas of teamwork, ability to lead, ability to work well with others, and ability
to work under stress than that of the selectee.

Complainant attempted to establish pretext by pointing out that she successfully mentored two
employees from May 2013 through January 2014, and that she is technically competent as
evidenced by her performance rating of 4.5. Complainant maintained that the District Manager
and others involved in her previous EEO complaints adversely influenced managers against her.
Complainant further argued that she was more qualified than the selectee and that the selecting
official’s choices for the past two years were both under the age of 40. The Agency rejected
Complainant’s argument, noting that although Complainant was acknowledged by management
as being technically sound, she was also regarded as not being a team player. Thereafter,
Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

Complainant did not submit a statement in support of her appeal of the Agency’s final decision.
The Agency submitted a brief in opposition to Complainant’s appeal in which it urged the
Commission to affirm its decision finding that Complainant was not discriminated against.

ANALYSIS AND FINDINGS

Initially, with regard to the dismissal of claims (3-8), we observe that the incidents at issue in
those claims occurred during the period of January 2012 – October 2013. Complainant initiated
contact with an EEO Counselor on July 31, 2014. This EEO contact was clearly after the
expiration of the 45-day limitation period. Complainant has not submitted adequate justification
for an extension of the 45-day limitation period for initiating contact with an EEO Counselor.
Accordingly, the Agency’s dismissal of claims (3-8) was proper and is AFFIRMED.
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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). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

With regard to claims (1-2), we shall assume arguendo that Complainant has set forth a prima
facie case of discrimination under each of the alleged bases. As for not making the Best
Qualified list for the Program position in claim (1), Complainant’s Supervisor stated that
Complainant did not possess the best teamwork skills and that there was tension in the office
about her lack of dependability in processing technical workloads. A Human Resources
Specialist stated that the cut off score to make the best qualified list was 94 and Complainant
received a score of 83. The District Manager stated that she considered Complainant not
approachable and that she cannot work as part of a team.

With regard to claim (2), the Agency asserted that Complainant was not selected due to ratings
provided by the District Manager that were much lower in the areas of teamwork, ability to lead,
ability to work well with others, and ability to work under stress than that of the selectee. We
find that the Agency has articulated legitimate, nondiscriminatory reasons for the nonselection at
issue in claim (2).

Complainant attempts to establish pretext as to claim (1) by arguing that her performance was
rated a 4.5 by her Supervisor and that he should have rated her higher for the Program. This
argument, however, does not establish that Complainant warranted a high enough score to be on
the Best Qualified list. Complainant has not refuted the Agency’s explanation that she is
deficient in teamwork skills and lacks dependability in processing technical workloads. We find
that Complainant has failed to establish that the Agency’s reasons were pretext intended to hide
retaliatory motivation.

As for claim (2), Complainant contends that her qualifications were superior to those of the
selectee for the Operations Supervisor position. Complainant relies in large part on her years of
experience. Complainant also states that she successfully mentored two employees from May
2013 through January 2014, and that she is technically competent as reflected in her performance
rating of 4.5. Complainant argues that the District Manager and others involved in her previous
EEO complaints adversely influenced managers against her. We note that Complainant has more
seniority than the selectee. However, additional years of experience do not necessarily establish
that she was more qualified than the selectee.
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Complainant has not presented persuasive evidence to challenge the District Manager’s rating of
the selectee with the highest rating of “5” in all ten areas identified on the Candidate Evaluation
Form. Complainant in contrast received the highest rating of “5” in only three of the ten areas.
According to the District Manager, Complainant’s most significant problem concerned her
ability to work well with others and develop and nurture a conducive environment for teamwork.
The District Manager explained that the selectee is a positive person who can receive feedback in
a constructive manner. The District Manager noted that the selectee also works well with others,
is a team player and exhibits the interpersonal skills that are conducive to helping others grow.
We observe that it is undisputed that Complainant had solid technical competence but in light of
her deficiencies in teamwork and her efforts to avoid assignments, we find that the Agency
regarded Complainant as lacking important skills for a supervisory position. Further, we discern
no persuasive evidence to support Complainant’s contention that the District Manager and other
managerial officials adversely influenced her nonselection based on discriminatory motivation.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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
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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 27, 2018
Date