0120141604
08-10-2016
Leora R.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leora R.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141604
Agency No. CHI130518SSA
DECISION
On March 31, 2014, Complainant filed an appeal from the Agency's March 13, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against Complainant on the bases of national origin, sex, or in reprisal for prior EEO activity when it did not select her for a Lead Social Insurance Specialist (Area Administrative Assistant) or a Social Insurance Administrator (Assistant District Manager) position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Support Specialist at the Agency's Merryville Field Office in Merryville, Indiana. On January 23, 2013, Complainant applied for the position of Lead Social Insurance Specialist (Area Administrative Assistant), GS-0105-13 (Vacancy No. SI-821850-13-1VOL-LH-09). When the selecting official (SO1) (Caucasian, male, unknown EEO activity) received the list of applicants, he and the Deputy Area Director (DAD) (Caucasian, female, unknown EEO activity), divided the applications, and contacted the applicants' supervisors. The SO1 stated that they asked the supervisors to rate the applicants as "Highly Recommended," "Recommended," or "Not Recommended" for the position. The DAD contacted Complainant's supervisor, the District Manager (DM) (Hispanic, male, unknown EEO activity), who recommended Complainant "with caution," due to concerns about her integrity. Complainant was not interviewed or selected for the position. On March 11, 2013, Complainant received an email notifying her of the selectee's (S1) (Caucasian, female, no prior EEO activity) selection.
On January 30, 2013, Complainant applied for the position of Social Insurance Administrator (Assistant District Manager), GS-0105-13 (Vacancy No. 51-834126-13-IVOL-LH-113). The selecting official (SO2) (female, Black, unknown EEO activity) contacted the DM, who did not recommend Complainant for the position because he believed that she lacked integrity and the soft skills needed for this position. Complainant was not interviewed or selected for the position. On March 27, 2013, Complainant received an email notifying her of the selectee's (S2) (Caucasian, female, no prior EEO activity) selection.
On June 26, 2013, Complainant and the DM met to discuss her mid-year performance. During the meeting, Complainant also asked the DM about the fact that he did not recommend her for the Social Insurance Administrator position. Complainant stated that the DM informed her that he had concerns about relationships she had with some of the employees; specifically, in going to lunch with a particular employee. Complainant stated that she asked the DM if he felt that she had disclosed some confidential information to this employee, and he said no.
On June 6, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic),2 sex (female), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on March 28, 2013, she was not selected for the Lead Social Insurance Specialist (Area Administrative Assistant) position;
2. on March 28, 2013, she was not selected for the Social Insurance Administrator (Assistant District Manager) position; and
3. on February 11, 2013, she was not selected for the Social Insurance Administrator (District Manager) position advertised under vacancy number SI-795349-13- VOL-LH-058.3
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. 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 did not discuss Complainant's prima facie case of discrimination based on national origin, sex, or reprisal for prior EEO activity; but found that the management officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, the SO1 used his personal judgment as to which candidate had the greatest potential for successful performance in the position. The SO1 also took into consideration the supervisors' evaluations of the candidates; the DM did not rate Complainant as highly recommended due to concerns about her integrity, whereas S1 was rated highly recommended, and there was no evidence that her supervisor questioned her integrity.
For claim 2, the SO2 stated that she chose S2 because she works with her, and determined that she was more qualified than any of the other applicants because she had all the characteristics necessary for the position. Additionally, the DM did not recommend Complainant for the position because he felt that she lacked the integrity needed for this position, while S2 was highly recommended by her supervisor, and there was no indication that her supervisor had reason to question her integrity.
In response to the proffered reasons, Complainant stated that the DM did not raise any of the stated concerns during their discussion on June 26, 2013. Complainant also stated that the DM's statement in her mid-year evaluation that she had "maintained a positive rapport with the office staff," does not support his claim that Complainant had no soft skills, and has difficulty dealing with employees or the public professionally. However, the DM stated that integrity and soft skills were not an issue for Complainant's current position, but that his concerns were related to the discretion needed for the positions to which she had applied. The Agency concluded that Complainant had not shown any evidence demonstrating that the DM or the selecting officials were motivated by her protected bases. As such, it found that the Agency did not discriminate against Complainant on the bases of sex, national origin, or in reprisal for prior EEO activity when it did not select her for the position of a Lead Social Insurance Specialist (Area Administrative Assistant) or a Social Insurance Administrator (Assistant District Manager).
Complainant filed the instant appeal, but did not submit a statement in support of her appeal. The Agency filed its opposition brief on May 27, 2014, asking the Commission to affirm its final decision.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant did not contest the Agency's dismissal of claim 3 on appeal; as such, we AFFIRM its dismissal and will not address this issue further in this decision.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, sex, and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, the SO1 stated that he selected S1 because she had worked in that office for years, and was very familiar with how the office operated. He also stated that S1 was familiar with how the budget worked, and that she had previously worked in the position. The SO1 stated that Complainant had not worked in that office; and that while she had some regional office experience, it was mostly programmatic, and not administrative. The SO1 also stated that he did not recall her supervisor's recommendation, but did not believe it was "highly recommended." The DM stated that he recommended Complainant "with caution" because he had concerns due to the sensitive information that their office handled. The DM stated that he had questions about her integrity because she had previously shared information with others that she should not have shared.
For claim 2, the SO2 stated that she selected S2 because she ranked higher than the other applicants. Specifically, the SO2 stated that S1 had a proven track record as a supervisor; had excellent interpersonal skills; had excellent communications skills; possessed knowledge of labor relations, employee relations, and leave administration; was resilient and able to handle situations under pressure; was a strategic thinker, with an ability to plan, set priorities and long term goals; and can get work done through others. The SO2 also stated that S2 had previously served two detail assignments as the Assistant District Manager. The SO2 stated that Complainant's supervisor did not recommend her for this position. The DM stated that he did not recommend Complainant for this position because he had concerns related to Complainant's lack of integrity and soft skills based on his observations while supervising her. For example, the DM stated that Complainant had some personal issues with some employees, and had difficulty dealing with it professionally. He also stated that while Complainant is doing well in her current position, he did not think she had the skills necessary for the Assistant District Manager position.
In a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10m Cir. 1981); Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). For claim 1, Complainant stated that her qualifications were superior to S1's, and listed her experiences. However, she did not show how her qualifications were superior to S1's. We note that S1's resume shows that she previously acted in this position twice. Additionally, S1's supervisor provided a highly recommended reference, and stated that S1 rose to the occasion while acting in the position, and that she would do well in the position. For claim 2, Complainant stated that her qualifications were superior to S2's, and listed her experiences. However, she did not show how her qualifications were superior to S2's. S2's resume shows that she also acted in the position twice. Accordingly, we find that Complainant has not shown that her qualifications were plainly superior to those of S1 or S2.
Additionally, Complainant has only made bare assertions that the management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. As such, we find that the Agency did not discriminate against Complainant based on her national origin, sex, or in reprisal for her prior EEO activity when it did not select her for the Lead Social Insurance Specialist (Area Administrative Assistant) and the Social Insurance Administrator (Assistant District Manager) positions.
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 finding that Complainant has not shown that the Agency discriminated against her on the bases of national origin, sex, or in reprisal for prior EEO activity when it did not select her for the position of a Lead Social Insurance Specialist (Area Administrative Assistant) or a Social Insurance Administrator (Assistant District Manager).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
_8/10/16_________________
Date
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.
2 Although Complainant designated her race as "Hispanic," the Commission recognizes this term as an indication of national origin rather than race. Accordingly, we will address her claim as involving an allegation of national origin discrimination.
3 The Agency dismissed claim 3 for untimely contact with an EEO Counselor. The Agency determined that Complainant learned of her non-selection on February 11, 2013, and her EEO contact occurred on April 22, 2013, which was beyond the 45-day deadline.
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