0120130304_0120143010
01-13-2016
Margeret M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Margeret M.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal Nos. 0120130304; 0120143010
Agency Nos. ATL110848SSA; ATL120840SSA
DECISION
Complainant filed appeals from the Agency's August 31, 2012 and July 14, 2014 final decisions concerning her equal employment opportunity (EEO) complaints 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. The appeals are timely and accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decisions.
ISSUES PRESENTED
Whether Complainant established by a preponderance of the evidence that the Agency discriminated against her when it did not hire her for multiple positions and subjected her to harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a a Teleservice Representative (TSR), GS-962-8, in Unit 18, Section 3, of the Birmingham Teleservice Center (BMTSC) located in Birmingham, Alabama.
Appeal No. 0120130304
On October 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), age (62), and reprisal for prior protected EEO activity when:
1. On August 4, 2011, she was notified that she was not selected for the Claims Representative positions advertised under the following Vacancy Announcement Numbers:
a. VAN SB-493107-11-RBS
b. VAN SB-493195-11-TPW; and
c. VAN SB-493204-11-VC.
Complainant also alleged that the Agency subjected her to discrimination and harassment based on race, age, and reprisal, when:
2. on August 24, 2011, she did not receive a Recognition of Contribution (ROC) Award for Exemplary Contribution or Service Award (ESCA);
3. Unit managers and section managers intentionally prevented her advancement by issuing her poor or average performance appraisals; and
4. She received unjust verbal and written remarks.
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 EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision (FAD1) pursuant to 29 C.F.R. � 1614.110(b).
In FAD1, the Agency found that Complainant was ranked with 100 points for each of the Vacancy Announcements that she applied for and was on the certificate of eligible candidates for the position. However, Complainant was not hired for any of the multiple vacancies in these positions. The record reveals that the volume of applicants for these positions was large. The deciding officials did not conduct interviews. Rather, the Area Office sent supervisory reference questionnaires (SRQ) to all the supervisors to provide recommendations for the applicants. The Area Office only forwarded the names of those candidates who were rated as "highly recommended" on the SRQ to the selecting officials.
Complainant's supervisor (S1) filled out one SRQ for all three Vacancy Announcements and provided that Complainant was "recommended" for the position, but did not state that she was "highly recommended." All of the positions were filled by candidates who were "highly recommended" by their supervisors. S1 denied discriminating against Complainant when he only rated her as "recommended." S1 did not recall any comments that he put on the form. S1 deleted the form after submitting it to the Area Office. S1 provided that Complainant's work was "satisfactory, or just like everyone else."
With regard to claim 1, the Agency found that it provided legitimate nondiscriminatory reasons for its actions-that Complainant was not considered for any of the positions because she was not "highly recommended" by S1, but only "recommended." The Agency found that Complainant failed to offer any evidence to demonstrate that S1 was motivated by discriminatory or retaliatory animus. The Agency noted Complainant's contention that S1 only gave her a "recommended" rating because he was told to do so by his superiors. However, the Agency found that nothing in the record supported Complainant's assertions. The Agency noted that it should have retained the documents related to the recommendations by the supervisors but its failure to do so was not material in this case.
With regard to claim 2, the Agency found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 stated that he did not provide Complainant ROC or ESCA awards because of a customer complaint lodged against Complainant. Further, the Agency found that only those employees who demonstrated that they went "above and beyond" were eligible for consideration. The Agency found that Complainant did not demonstrate that she performed in such a manner that warranted an award or that a customer complaint was not lodged against her. Further, the Agency found that Complainant did not show that it was motivated by discriminatory animus when she was not provided the awards.
With regard to claims 3 and 4, the Agency found that it proffered legitimate, nondiscriminatory reasons for its actions. S1 stated that he rated Complainant with an overall score of 4 based on the "very good job" that she did throughout the year. S1 stated that Complainant was not consistently excellent but he gave her a high rating due to her strong work throughout the year. S1 stated it was rare for employees to receive a score of 5. Moreover, the Agency found that while Complainant disagrees with S1 and other individuals' observations and criticisms of her, she did not establish the Agency was motivated by discriminatory animus. Agency found that Complainant did not establish that the Agency's stated reasons were a pretext for discrimination. The Agency found that Complainant's mere disagreement with the rating was not sufficient to establish that the Agency's reason was not credible. The Agency further noted that nothing in the record showed that the Agency was motivated by discriminatory or retaliatory animus.
Turning to Complainant's harassment claim, the Agency found that one of the incidents alleged by Complainant, a 2010 evaluation, was, at the time, pending at a different stage of the EEO process. Although Complainant requested that the 2010 evaluation be included in the harassment analysis to establish a pattern or practice of discrimination, the Agency declined to include that claim within its harassment analysis. The Agency proceeded to analyzed all remaining claims together to determine whether Complainant established that she was harassed as alleged. The Agency found that Complainant did not establish a connection between the incidents and her protected classes. Further, the Agency found that the incidents were not sufficiently severe or pervasive to render her work environment hostile. The Agency found that Complainant did not offer sufficient evidence to demonstrate that she was harassed as alleged.
The Agency also noted that it reviewed Complainant's evidence submitted in her "Supplemental Investigative Record." The decision, nevertheless, concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency's final decision to the Commission.
Appeal No. 0120143010
Complainant filed the complaint in this appeal on September 29, 2012. Complainant alleged that the Agency discriminated against her based on age, race, and reprisal when:
5. on July 20, 2012, she became aware that she was not selected for the GS-0901-09 Benefit Authorized (BA) position advertised under Vacancy Announcement No. SB-672331-12-RBS; and
6. She was subjected to harassment based on age, race, and reprisal, since her filing of her first EEO complaint on October 17, 2006, when she faced ongoing and continuous discrimination, including excessive scrutiny of her work and inaccurate performance appraisals.
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 EEOC Administrative Judge. When Complainant did not respond in the requisite time frame, the Agency issued a final agency decision (FAD2) on July 14, 2014.
In FAD2, the Agency dismissed claim 6, due to Complainant's failure to prosecute the claim. The Agency found that in response to the Agency's request to clarify the incidents in claim 6, Complainant responded that "management officials continued to watch her closer than other employees, falsify, embellish, and/or inadequately detail information on her performance appraisals and give her negative ratings on . . . calls and/or downplay her performance." FAD2 at 2. The Agency attempted to further clarify the dates of the incidents and the individuals responsible for the incidents, but Complainant merely responded that her allegations of harassment included all incidents that were previously raised in other EEO matters. The Agency also dismissed this claim for failure to state a claim.
With regard to claim 5, the Agency found that Complainant timely applied for the position at issue but she was not interviewed. On July 20, 2012, she received an email stating that nine candidates were selected for the position, but that she was not selected.
The Agency found that it articulated legitimate, nondiscriminatory reasons for its action. S1, who was no longer Complainant's supervisor, completed the SRQ because less than 120 days had passed since he last supervised Complainant. S1 rated Complainant as "recommend" rather than "highly recommend." S1 did not rate anyone at the "highly recommend" level. The Selecting Official (SO) for this position stated that over 100 candidates applied for the nine positions and she only considered those employees who received the "highly recommend" referral from their supervisors.
In order to show that the Agency's proffered reasons were a pretext for discrimination, Complainant argued that she received an award for the past performance year, she was employed longer than the selectees and received a 4.0 rating on her most recent performance appraisal. However, the Agency found that Complainant failed to provide documentation to show that she received an award, and did not proffer any other evidence to support her allegations that the Agency was motivated by discriminatory intent. Therefore, the Agency found that Complainant did not establish that she was discriminated against as alleged.
CONTENTIONS ON APPEAL
Appeal No. 0120130304
On appeal, Complainant requests that the Commission consolidate all of her past complaints in order to demonstrate that the Agency has subjected her to a pattern and practice of discrimination and harassment. Further, Complainant argues that the evidence she gathered in her Supplemental Investigation should have been considered by the Agency in its decision. Complainant also argues that the Agency erred in framing her claims and erred when it did not consider her prior EEO complaints as part of a pattern and practice of discrimination.
Appeal No. 0120143010
On appeal, in relevant part, Complainant requests that the Commission sanction the Agency for destroying the documents that contain the recommendations provided by S1. Complainant again argues that the Agency mis-framed her claims and requests that the Commission consider all of her past EEO complaints in order to show that a pattern and practice of discrimination exists. Complainant also contests the dismissal of claim 6 by the Agency.
ANALYSIS AND FINDINGS
Procedural Matters
Preliminarily, we address Complainant's request to consider all of Complainant's past EEO complaints together to create a single claim of harassment. Complainant's request must be denied because there is no authority that requires that the Commission reopen and consider past incidents which have already been previously unsuccessfully litigated in order to establish a pattern and practice case. Accordingly, we decline to consider past complaints that have already been addressed in decisions by the Commission. We note that Complainant had the opportunity to request reconsideration of those decisions or to file civil actions in federal court. Because these matters have been decided and Complainant has not offered any persuasive evidence to show why those decisions finding no evidence of discrimination or harassment were erroneously decided, we decline Complainant's request.
While we have consolidated Complainant's present appeals in this decision, we find that the Agency properly dismissed claim 6. Specifically, we find that claim 6 is an attempt to revive past complaints which have already been addressed by the Commission. As noted by the Agency, Complainant did not adequately identify any new incidents of alleged harassment with any degree of specificity such that the Agency could properly investigate the allegations.
To the extent that Complainant also alleges on appeal that claim 5 is part of her allegation of harassment, we shall consider it as part of her overall harassment claim involving claims 1 - 5 and analyze it below.
With regard to Complainant's contentions regarding the framing of her claims, we find that the Agency appropriately framed the claims as alleged. The main difference between the way Complainant framed the claims and the way the Agency framed the claims is that the Agency declined to frame the claims in such a manner that Complainant's prior complaints are consolidated to allege a single claim of a pattern and practice of harassment. We find that since the Commission had already issued decisions in those matters and Complainant has not presented any new persuasive evidence to support her contentions that all of the complaints, taken together, establish discrimination, we decline to reframe Complainant's claims as requested.
With regard to Complainant's request for the Commission to sanction the Agency for the destruction of supervisory reference questionnaire for all of the selections at issue, we find the deliberate destruction of documents created during the selection process to be troubling. However, we find that the record contains sufficient evidence, including the affidavit testimony of S1 as to what he rated Complainant, as well as other evidence to corroborate S1's testimony. There is no dispute that S1 only provided Complainant with a rating of "recommended." Further, Complainant had the opportunity to have a hearing before an AJ to further develop the record through discovery. Complainant did not avail herself of that opportunity, because she requested a final decision from the Agency instead. Accordingly, we decline Complainant's request for sanctions against the Agency.
Disparate Treatment
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. (November 9, 1999) (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").
To prevail in a disparate treatment claim such as Complainant's allegation that she was not selected for numerous positions, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. See Hicks, supra.
Assuming that Complainant established a prima facie case of discrimination based on age, race, and reprisal, the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, the selecting officials did not choose Complainant for any of the vacancies because S1 did not rate her as "highly recommend" on the SRQ. Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for discrimination. We find that Complainant did not offer anything more than her assertions that the Agency was motivated by discrimination with regard to these positions. Although Complainant asserted that she was better qualified that the selectees, Complainant has not demonstrated that S1 was motivated by discriminatory reasons when he did not rank her as "highly recommended" on the SRQs. Further, nothing in the record supports her assertions that the Agency was motivated by discriminatory or retaliatory reasons.
Similarly, with regard to claim 2, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 stated that he did not provide Complainant ROC or ESCA awards because of a customer complaint lodged against Complainant. Further, the Agency found that only those employees who demonstrated that they went "above and beyond" were eligible for consideration. We find nothing in the record shows that the Agency was motivated by discriminatory animus when Complainant was not provided the award nor has Complainant established that she was entitled to the award.
Additionally, with regard to claims 3 and 4, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. The Agency provided that Complainant's rating of "very good" was warranted based on her performance. Further, nothing in the record shows that any written or verbal remarks were unwarranted. Although Complainant may take issue with the Agency's evaluation of her work, we find that nothing in the record shows that the Agency was motivated by discriminatory animus.
Harassment
In order to establish a claim of retaliatory harassment, Complainant must show membership in a protected group, and severe or pervasive harassing conduct, such that it alters the conditions of her employment, that would not have occurred except for her membership in that protected group. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Henderson v. City of Dundee, 682 F.2d 897, 903-4 ( 11th Cir. 1982). The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
We note that because the Commission found that Complainant failed to establish that the Agency was motivated by discrimination with regard to any of her claims, Complainant cannot succeed on her harassment claim as well. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency with respect to claims 1 - 5 were motivated by discriminatory animus. See Oakley v. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish that she discriminated against or harassed as alleged. Accordingly, the Commission AFFIRMS FAD1 and FAD2.
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
__1/13/16________________
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.
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0120130304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130304 & 0120143010