0120160616
02-22-2018
Marcel M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marcel M.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160616
Agency No. NY140481SSA
DECISION
On November 20, 2015, 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 October 22, 2015 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative, GS-11, at the Greece District Office in Rochester, New York. On May 12, 2014, Complainant initiated EEO contact alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), age (53), and reprisal for prior protected EEO activity (2009 claims with the Department of Labor (DOL), the Merit Systems Protection Board (MSPB), and the Office of Special Counsel (OSC))2 when:
1. on May 8, 2014, the Agency failed to select Complainant for an Operations Supervisor (OS), GS-12, position under Vacancy Announcement SN-1088129-14-ROII 071,
2. a. in October 2013, the Agency denied Complainant a 120-day temporary OS position, stating that there was no funding for mileage for Complainant to travel from his home to the office while on the detail,
b. in December 2012, Complainant learned that five new OS positions were filled while he was on active duty although he asked to be informed of all announcements,
c. in October 2006 and June 2007, the Agency failed to select Complainant for OS positions,
d. in February 2007 and February 2014, the Agency failed to select Complainant for 120-day details,
e. in February 2014, the Agency denied Complainant a transfer back to the Rochester Office, and
f. on July 31, 2014, the Agency made Complainant feel forced to retire early.
On August 14, 2014, Complainant filed an EEO complaint reiterating the above claims. Complainant alleged that management preselected candidates for OS positions by placing employees in OS details to justify hiring them for a permanent OS position.
The Agency dismissed claims (2)(a) through (2)(e) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact. Also, the Agency dismissed claim (2)(f) pursuant to 29 C.F.R. �� 1614.107(a)(1) & (5) for failure to state a claim and as moot. The Agency stated that Complainant did not retire and transferred to the Agency's Orlando Field Office where he remained employed at the time of investigation. The Agency accepted claim (1) for investigation.
Investigation
The District Manager (S1) (non-Hispanic, male, 63) was Complainant's second-level supervisor and the selecting official for the OS position under Vacancy Announcement SN-1088129-14-ROII 071. S1 stated that he contacted the manager of each candidate on the best qualified list and requested a recommendation. He stated that he considered the manager recommendation highly, as well as experience, details and developmental assignments, training and self-development relevant to the position, relevant outside activities, job-related awards, the highest grade held, and skills. S1 stated that the selectee (C1) (non-Hispanic, male, 29) was the most qualified candidate for the position. He stated that C1 had recently served in a 120-day detail in the Rochester District Office and performed extremely well. S1 stated that C1 exhibited outstanding interpersonal skills, maintained a positive and productive work environment, and produced a high volume of quality work. S1 stated that Complainant's manager (S2) wrote that, overall, Complainant is a "hard worker, flexible, and produces a quality work product." However, S2 conveyed reservations about Complainant and his interpersonal skills, citing several negative incidents between Complainant and his coworkers or customers. S1 stated the selection was not a pre-selection, and it was made based on merit and job performance.
The Area Director, Complainant's third-level supervisor, (S3) (non-Hispanic, male, 61) was the concurring official for the position. He stated that his assessment was based on applicant packages and manager recommendations. S3 stated that the OS position directs and supervises the work of dozens in a busy and stressful environment, so it is essential the incumbent have strong and reliable interpersonal skills, and that Complainant had difficulty in this area. S3 stated that the selectee, C1, was referred without reservation by his supervisor and manager. S3 stated, "Although [Complainant] was a good candidate, C1 was the best candidate."
Complainant's manager, S2, (non-Hispanic, male, 58) stated that he told S1 that Complainant could be an effective OS and recommended him for the position. S2 also stated that he informed S1 that there were occasions when Complainant misconstrued what coworkers or customers said, perhaps taking a personal affront when none was intended.
Complainant's coworker (C2), who is a former union representative, (non-Hispanic, female, 66) stated that she believes management preselected employees for OS positions for years. C2 stated that Complainant was the most qualified for the OS position and he is polite and courteous. Another coworker corroborated C2's contentions of preselection.
Post-Investigation
Following 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 or an immediate final agency decision. 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 him to discrimination as alleged. The Agency reiterated its procedural dismissal of (2)(a) through (2)(f). The instant appeal from Complainant followed.
On appeal, Complainant stated that he was constantly overlooked for promotion due to involuntary military immobilizations in past years. Further, he stated that management selected persons outside of his protected classes to place in temporary details and then permanent positions. Complainant stated that he could not retire because he would have to pay $12,000 for a military buy-back, so a hardship transfer to the Orlando District Office was his only option because he was not advancing. Complainant stated that the Agency continued to preselect for the OS position after he left the Greece office.
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").
Procedural Dismissals
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
We find that Complainant's initial EEO contact on May 12, 2014 for the incidents alleged in (2)(a) through (2)(e) is untimely. The adverse actions alleged in (2)(a) through (2)(e) range in date between October 2006 and February 2014, which puts Complainant's May 12, 2014 initial contact well beyond the 45-day timeframe.
Also, the Commission finds that (2)(f) fails to state a claim under EEOC regulations because Complainant failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Specifically, Complainant stated he felt forced to retire early because the Agency did not select him for advancement at his office. Complainant stated further that it was not financially possible to retire so, instead, he transferred to the Agency's Orlando Office. We find that Complainant did not suffer harm for an event (early retirement) that did not occur.
Further, to the extent Complainant alleged discrimination based on military service, we find prior said service is not a recognized basis for a discrimination complaint under EEOC Regulations. See 29 C.F.R. � 1614.103. However, as complainant's claim (1) also alleges discrimination based on national origin, sex, age, and reprisal, which are cognizable bases for a discrimination complaint, we will review claim (1) based on the merits, below.
Non-selection
A claim of disparate treatment is examined under the three-part 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 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. 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, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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, non-discriminatory 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).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on national origin, sex, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. We find further that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Both Complainant and the selectee were found to hold at least the minimum qualifications for the OS position. The selecting official, S1, stated that both Complainant and C1's managers recommended them for the OS position. However, Complainant's manager, S2, noted that Complainant sometimes took offense to comments by coworkers or customers when none was intended. The concurring official, S3, stated "Although [Complainant] was a good candidate, C1 was the best candidate."
We find that Complainant has not shown that his qualifications were so superior to those of the selectee as to compel a finding of discrimination. And, the Commission's regulations do not prohibit an agency from selecting the candidate of its choice from among a group of eligible candidates who are deemed qualified for the position. Beckett v. Dep't of the Navy, EEOC Request No. 05880086 (July 25, 1988). Thus, after a careful review of the record, we AFFIRM the final agency decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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.
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
February 22, 2018
__________________
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 Relevantly, the record contains: a November 18, 2009 letter from Complainant to OSC alleging discrimination in denial of promotions based on his military service; a DOL letter, dated December 14, 2009, finding no discrimination based on military service for non-selections in 2004, 2005, 2007, and 2008; and an MSPB Initial Decision, dated January 6, 2010, dismissing Complainant's allegation of discrimination for denial of promotions and advancement opportunities under the Uniformed Services Employment and Reemployment Rights Act of 1994. MSPB dismissed for lack of jurisdiction.
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