Justin P.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120172087 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justin P.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120172087 Agency No. PHI-16-0638-SSA DECISION On May 27, 2017, 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 May 17, 2017, final decision concerning his 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. 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 Claims Service Representative, GS-8 at the Agency’s Baltimore, Maryland Teleservice Center in Baltimore, Maryland. On August 27, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 1. on May 5, 2016, the Agency notified Complainant that he was not selected for the position of Social Insurance Specialist (Claims Specialist) under Vacancy Announcement No. 1589507; and 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. 0120172087 2 2. on May 5, 2016, the Agency notified Complainant that he was not selected for the position of Social Insurance Specialist (Claims Specialist) under Vacancy Announcement No. 1586298. On December 14, 2016, the Agency accepted Complainant’s amendment of his complaint, in which Complainant further alleged that the Agency discriminated against him in reprisal for prior protected EEO activity when: 3. on November 1, 2016, the Agency notified Complainant that he was not selected for the position of Lead Contact Representative (Lead Customer Service Representative) under Vacancy Announcement No. SA1762383-16-396, GS-0962- 09; and 4. on November 9, 2016, the Agency lowered Complainant’s Performance Assessment and Communication System (PACS) rating from 3.5 to 3.0. Claim (1) Vacancy Announcement No. 1589507 stated that it was available only to Agency employees to fill a position in Baltimore, Maryland. Management selected one individual (Selectee 1) from the applicants who responded to this posting. The District Manager for the Downtown Baltimore Field Office (DM-Baltimore) was the selecting official for this posting. DM-Baltimore averred that she did not know Complainant and was not aware that he had any prior EEO activity. She reviewed a certification list that included Complainant’s application and was seeking candidates “who had face-to-face interviewing skills, prior field office experience, education, and ability to analyze complex situations appropriately.” Based on these criteria, Complainant did not move beyond DM-Baltimore’s initial screening for further consideration. The record contains both Selectee 1’s and Complainant’s applications and the Agency’s scoring of these applications. Claim (2) Vacancy Announcement No. 1586298 was also available only to Agency employees to fill two positions in Annapolis, Maryland. The Agency selected one individual (Selectee 2) from the applicants who responded to this posting. The record contains both Selectee 2’s and Complainant’s applications and the Agency’s scoring of these applications. The District Manager of the Glen Burnie Office (DM-Glen Burnie) was the selecting official for this position. DM-Glen Burnie denied being aware of Complainant’s prior EEO activity and said that he did not select Complainant because there were candidates better qualified than Complainant. Claim (3) Vacancy Announcement No. 1762383 stated that it was available only to Agency employees and sought to fill 30 vacancies for Lead Contact Representative, GS-9, positions in Baltimore, Maryland. The Agency received approximately 80 applications. 0120172087 3 The Agency formed an interview panel comprised of four Section Managers. Each Section Manager affirmed that they were unaware of Complainant’s prior EEO activity and all, save one, had never met Complainant. The one exception had been Complainant’s second-level supervisor for more than a year. The interview panel interviewed all candidates who were rated “highly recommended” or “recommended” by their immediate supervisors. Complainant had been rated “recommended,” and was interviewed by the panel. The panel then identified the 30 best candidates and recommended these candidates for selection to the TSC Director. Complainant was not one of the 30 recommendations. The TSC Director accepted the panel’s recommendations. As to Claims (1) through (3), Complainant argued that he has named the TSC Director, his second- line supervisor (S2), and his third-line supervisor (S3) in all of his prior EEO complaints, and that it was common knowledge that all hiring decisions go through S2, S3, and the TSC Director. Complainant also alleged that he was substantially more qualified, with 27 years of experience in many and varied areas. Claim (4) Complainant alleged that the TSC Director, who is also his fourth-level supervisor, directed his immediate supervisor (S1) to issue him a performance rating of 3.0, instead of 3.5. Complainant stated that S1 would not have lowered his rating otherwise because she “has been very helpful to me, and would not have lowered my rating without instruction.” Complainant states that there was no drop in his performance. S1 denied being instructed by the TSC Director to lower Complainant’s performance. S1 said that the rating was her good-faith assessment of Complainant’s performance. The record contains Complainant’s performance evaluations for several years. Between 2013 and 2016, Complainant’s evaluations ranged from a 3.0 average to a 3.5 average. Complainant’s performance evaluation for 2016 contained specific performance critiques. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency concluded that Complainant failed to establish a prima facie case of discrimination as to claims (1) through (3). Further, the Agency accepted the selecting officials’ explanations for their selections as legitimate and non-retaliatory. Complainant’s assertion that he was more experienced did not, in the Agency’s eyes, demonstrate that he was plainly superior to the selectees and therefore were insufficient to show pretext. As to claim (4), the Agency also concluded Complainant failed to establish a prima facie case of reprisal and failed to show the Agency’s articulated explanations, both during the investigation and within the performance appraisal itself, were pretext. 0120172087 4 Accordingly, the Agency found that Complainant was not subjected to reprisal as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, 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 he 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 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990). Claims (1) through (3) The Agency articulated legitimate, non-retaliatory reasons for not selecting Complainant. 0120172087 5 Both DM-Baltimore and DM-Glen Burnie said that they believed other candidates were more qualified than Complainant for the positions in claims (1) and (2). As to claim (3), the TSC Director convened an interview panel to determine the 30 best qualified candidates, and Complainant did not make that list. The panel indicated that there were other better-qualified candidates than Complainant. Complainant makes no effort to argue, beyond speculative and conclusory statements, that the selecting officials’ statements are pretext for retaliatory animus. Complainant argues that he is substantially more qualified than the selectees, but does not specify just how he is more qualified other than to point to his years of experience. We have previously found that length of experience or seniority are not necessarily indicative of observably superior qualifications. See Complainant v. Dep’t of Labor, EEOC Appeal No. 0120132913 (Oct. 2, 2015). Moreover, the Commission simply has neither the authority nor the capacity to stand as the super-personnel department for the Agency. Only personnel decisions that are idiosyncratic or suspect are subject to heightened scrutiny because deviations from standard procedures without explanation or justification are sufficient to support an inference of pretext. See Andre v. Dep’t of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002); Hovey v. Dep’t of Housing & Urban Dev., EEOC Appeal No. 01973965 (Aug. 31, 2000). We see no such suspect action here. Based on a comprehensive review of the record, we find Complainant has not carried his burden of showing the Agency retaliated against him. Claim (4) S1 explained that she assigned Complainant a 3.0 rating based on her good-faith assessment of Complainant’s performance. The performance appraisal also contains more specific critiques of Complainant’s performance. Complainant’s only argument is to speculate that the TSC Director ordered S1 to lower Complainant’s rating, which S1 denies. Our review of the record reveals nothing that could tend to establish S1’s statements are false or unworthy of belief, particularly since Complainant’s 3.0 rating is largely consistent with prior performance appraisals and contains legitimate criticism. Accordingly, the Commission concludes that Complainant failed to show that the Agency’s articulated legitimate, non-retaliatory reasons for its actions were pretextual. As a result, the Commission finds that Complainant was not subjected to reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 0120172087 6 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. 0120172087 7 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 November 21, 2018 Date Copy with citationCopy as parenthetical citation