0120120947
05-15-2012
Khris Johnson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Khris Johnson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120120947
Agency No. CHI-10-0573-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 17, 2011 final decision 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
During the period at issue, Complainant worked as a Service Representative at the Agency's North Flint, Michigan District Office.
On July 23, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (over 40) when:
1. she was not selected for the position of Social Insurance Specialist (Claims Representative-CR), GS-105-9/11, advertised under Vacancy Announcement Number (VAN) SI-333976-10-IVOL-JV-234; and
2. she was subjected to harassment when on April 13, 2010, management opened and viewed the contents of three personally addressed boxes she mailed to the office. As a result, management officials questioned her regarding documents they removed from the boxes.
On September 8, 2010, the Agency issued a partial dismissal. Therein, the Agency accepted claim 1 for investigation. However, the Agency dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
After the investigation of claim 1, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The record reflects that by an order dated June 14, 2011, the AJ cancelled the hearing request on the grounds that Complainant did not demonstrate a "medical condition" severe enough to justify an extension of the regulatory time frame for requesting a hearing. The record further reflects that the AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its November 17, 2011 final decision, the Agency found no discrimination concerning claim 1. The Agency found that Complainant did not establish a prima facie case of race and sex discrimination. The Agency found, however, Complainant established a prima facie case of age discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the Agency found that the selectee was chosen for the Claims Representative position because she had certain Claims Representative experience whereas Complainant did not.
The District Manager of the North Flint office was the selecting official (SO) for the position of Claims Representative advertised under VAN SI-333976-10-IVOL-JV-234. SO stated that she received a Best Qualified list from Human Resources of seven candidates, including Complainant. SO stated that she did not conduct any interviews but, instead, spoke with the candidates' supervisors prior to making her selection.
SO stated that after speaking with the candidates' supervisors, she chose the selectee for the subject position at the GS-9 level because she was best qualified. Specifically, SO stated that the selectee's supervisor stated that the selectee "is a self starter, sees a need and does it, highly dependable, highly motivated and wants to do a good job and will do a good job. She has shown great initiative by the number of SSA go-learned courses that she has taken on her own. She created a Power Point for the reception area to promote our office and internet services and did this without guidance or being asked. She saw the need and did it. Last, she would be a good morale builder for the office."
SO stated that she did not select Complainant for the subject position because Complainant was not ready to perform the duties of a Claims Representative. Specifically, SO stated that the District Manager (DM) of the Agency's Flint, Michigan office stated that based on his observations during her Special Opportunity to Excel (SOX) detail, she "did not have the analytical ability to be a Claims Representative and she did not assume responsibility."
SO stated that she also received responses from Complainant's first-level supervisor (S1). In her written statement, S1 stated that she would recommend Complainant "a writing course and suggest she work independent research issues . . . the candidate has a mental acuity to move beyond the SR ranks given strong mentoring and motivation on her part to strengthen the skills necessary to become a Claims Rep."
DM stated that he was Complainant's third-level manager during her SOX detail. DM further stated that when SO contacted for feedback concerning Complainant's performance during her detail, he told her that during the six months Complainant worked in his office, she had "some issues relative to learning certain jobs or aspects of job. We had given her assignments to do which we call Medical Continuing Disability Reviews and it's a relatively simple process. You would think someone that's been in the organization that many years would have been able to learn that process quickly, but it took repeated efforts by [S1] in training [Complainant] to the level of proficiency that we were really looking for."
DM further stated that Complainant did some Claim Representative duties but "her issue was that she continued to make the same type of errors over and over again. It seemed that she was having difficulty learning the task even after repeated attempts at training."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning claim 1 because the preponderance of the evidence of record does not establish that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2012
__________________
Date
1 On appeal, Complainant does not challenge the September 8, 2010 partial dismissal issued by the agency regarding claim 2. Therefore, we have not addressed this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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