Lauralee C.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 18, 2018

0120161813 (E.E.O.C. Sep. 18, 2018)

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

Lauralee C.,1
Complainant,

v.

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

Appeal No. 0120161813

Agency No. ATL-15-0381-SSA

DECISION

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 March 15, 2016, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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 Teleservice
Representative, GS-0962-08, at the Agency’s Teleservice Center (TSC) facility in Tampa, Florida.
During the relevant time, Complainant’s first line supervisor (S1) was a GS-12 Supervisor.
Complainant’s second line supervisor (S2) was the Deputy TSC Manager.

On April 11, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Black), sex (female), disability, and in reprisal 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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On January 28, 2015, Complainant was not selected for the Growth and Enrichment in the
Atlanta Region (GEAR) Development Program advertised under Vacancy Announcement
Number SB-1156132.

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 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). The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.

The Agency noted that Complainant indicated she applied for the GEAR Program and her name
was listed on the Certificate of Eligibles; however, she was not interviewed for the position.
Complainant noted that there were three selectees from her office and to her knowledge, none of
them have been involved in protected EEO activity, nor was she aware of them having a medical
condition. Complainant acknowledged that the three selectees appeared to be African-American
and that all three were female. Complainant stated that the selectees were allowed to mentor, train,
act in the capacity as Technical Assistants, which she believed allowed them to have an advantage
in the selection process. Complainant further stated that their references were completed in a
timely manner, not 40 days late as hers was, which she claimed caused her total submission to be
incomplete.

The Agency articulated legitimate, nondiscriminatory reasons for its nonselection of Complainant.
The Agency noted Complainant was evaluated by S1 on four competencies, receiving a score of 3
on each of them on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). Management
stated Complainant’s questionable integrity, failure to communicate properly and confrontational
manner, were all factors in the evaluation provided by S2 (who rated Complainant 2 on each of
the four competencies). Management indicated that following the selection panel’s review of
applications and supporting documents, Complainant received the lowest score among the seven
applicants from the Tampa TSC and was not referred for further consideration. Management
explained that in December 2014, it was brought to their attention that a GEAR supervisory
evaluation was outstanding. Management noted the late submission of this evaluation by
Complainant’s supervisors had no negative affect on her consideration for the position.

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
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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”).

Assuming Complainant established a prima facie case for all bases, we find that Complainant
failed to show that the Agency’s legitimate, nondiscriminatory reason for her nonselection was a
pretext for discrimination. Regarding the late submission of the supervisory evaluation from S1
and S2, we find there is no indication that the delay in providing the evaluation was based on
discriminatory animus. Moreover, the record reveals that despite being late, the supervisory
evaluation from Complainant’s supervisors was considered and factored into Complainant’s
scoring. Furthermore, we find Complainant failed to show that her qualifications were plainly
superior to those of the selectees. Accordingly, the Commission finds that Complainant did not
prove that she was subjected to discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s decision finding no discrimination is AFIFRMED.

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.
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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

September 18, 2018
Date