Marva M.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120170969 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marva M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120170969 Agency No. CHI160073SSA DECISION On January 20, 2017, 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 December 9, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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. ISSUES PRESENTED Whether Complainant was discriminated against when she was not selected for the position of Disability Branch Chief and when she received a lower evaluation rating than she believed she deserved on her 2015 performance appraisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Leader, GS- 13, at the Agency’s Office of Quality and Review, Disability Quality Branch facility in Chicago, Illinois. 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. 0120170969 2 On February 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (Heart Condition/High Blood Pressure, Hip Condition, Depression/Anxiety, and Detached Retina), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 and Section 501 of Rehabilitation Act of 1973 when she was not selected for the position of Disability Branch Chief, and when on November 5, 2015, Complainant received an overall appraisal rating of 3.3 for FY 2015. October 2015 Non-Selection Complainant had thirty-three (33) years of Social Security Administration experience, including seven (7) years as a Program leader. She had knowledge of Social Security Administration programs, policies, and procedures. She was a Disability Processing Specialist in the Disability Program Branch of Great Lakes Program Service Center from December 1999 through October 2003. The Agency considered her to be highly technically proficient in Disability policy. Complainant stated that she could direct and oversee work and communicate both orally and in writing. Complainant stated that she possessed the requirements for the position at issue because she made the Best Qualified List (BQL). The duties of the Disability Branch Chief was to: (1) direct the activities of the Branch which is responsible for the analysis and reporting of disability quality data in order to identify trends; (2) discern sources and patterns of errors, and recommend improvement in policies, procedures, systems and practices nationally and regionally; and (3) Oversee the performance of sample case reviews of initial reconsideration and continuing disability review cases adjudicated by State Disability Services and other SSA components. Complainant, along with others, applied for the position. M1, Branch Chief, was Complainant’s first level supervisor. M2 was the Agency Director and the recommending official in this matter. M3 was the Selecting Official. Although Complainant was one of the four finalists, she was not selected. Complainant requested a recommendation from M1, but Complainant was unaware of what specific feedback he provided. The evidence of record established that Complainant was “not recommended” for the position by M1. M2 explained that she considered the interview rating scores, candidate applications, and supervisory recommendations to rank the four finalist candidates and to make her recommendation to M3, the selecting official. She ranked the ultimate selectee (S1) first out of the four finalists. She explained that S1 had the highest consensus interview score and was the only candidate who was “highly recommended” by their supervisor. M2 stated that S1 was the highest producing Program Leader with respect to managerial case reviews, volunteering for duties outside his core responsibilities, and had a proactive demeanor. M2 stated that the candidates were interviewed in the same manner, asked the same questions by the same panel members, and were allotted the same predetermined amount of time to respond to the questions. 0120170969 3 After each of the interviews, all panel members individually scored the applicants on each of the questions, then discussed their observations to achieve a panel consensus rating for each candidate. M2 stated that she used the panel consensus rating scores along with a review of the finalist’s SSA- 45 and supervisory recommendation to make her recommendations to the Selecting Official. M2 stated that she spoke with Complainant to advise her that she had not been selected for the position, on or about October 14, 2015, prior to making the selection announcement. M2 provided Complainant with suggestions on what she could do to further develop her core competencies in the performance elements of communication, performance management, and participation so she could demonstrate her readiness for the Disability Quality Branch Chief position and other future opportunities. M2 also stated that she explained her rationale for recommending the successful candidate as her first choice for the position in a memorandum she provided to M3. As was noted above, S1 received the highest consensus score from the panel during the interview process and received the highest supervisory recommendation, and received a recommendation of “highly recommended,” he was the only candidate to receive such a recommendation. M3 concurred in the assessments provided by M1 and M2. Regarding her non-selection, Complainant stated that M1 was a new Branch Chief and had been promoted into his position in 2014. Complainant stated that M1 had not been working with her long enough to know about her work, had rated her as “just satisfactory” while working for him, so she “did not have a chance.” Complainant also averred that it “seemed” to her that M2’s preference was to select male employees, which she stated was apparent because the front office consisted entirely of male employees. M1 stated that he was unaware of Complainant’s prior EEO activity. M2, in response to Complainant’s allegations that M1 had not been her supervisor long enough to know about her work and that his recommendation was biased, stated that M1 had Complainant’s mid-term discussion with which to base his recommendation and “had plenty of time to assess her performance.” M2 also stated that, with respect to Complainant’s allegation that she was the best qualified candidate based on her experience and length of time working for the Agency, the Agency used merit promotion principles when selecting candidates for promotion and that seniority was not a consideration. M2 indicated that Complainant’s contention that S1 was not the best qualified person for the position was false and that he demonstrated outstanding communication skills and high productivity; he proactively engaged in learning and applying new concepts; and he assumed additional tasks in addition to his core job responsibilities without being asked to do so. M2 stated that Complainant was one of the lower producing Disability Quality Branch Program Leaders. M2 denied that Complainant’s age and sex were factors in her non-selection for the position. 0120170969 4 Finally, M2 disputed the contention that S1 had an advantage due to a videoconference equipment malfunction, and that he was interviewed via teleconference. She asserted that S1, Complainant, and another employee were in Chicago, and a combination of in-person and videoconferencing was utilized during their interview. The fourth candidate was interviewed exclusively via videoconference because she was in another regional office. M2 was unaware of anyone having received an interview via teleconference, and that to her knowledge, all the candidates were seen by all the panel members. November 5, 2015, Appraisal Rating On November 5, 2015, Complainant received an overall appraisal rating of 3.3 for Fiscal Year 2015. Complainant stated that M1 was the individual who completed her appraisal rating, and there was no concurring/reviewing official on the appraisal. Complainant maintained that there were six (6) criteria on which she was rated, which included: Interpersonal Skills; Participation; Demonstrates Job Knowledge; Achieves Business Results; Demonstrates Leadership; and Assist in Managing Performance. Complainant stated that she received ratings of three (3) in all elements, except for Demonstrates Job Knowledge for which she received a rating of Outstanding, i.e., five (5). M1 stated that Complainant received ratings of “Successful Contribution,” i.e., 3 on five elements because her overall work production level was low compared to those of her co-workers who received higher ratings. Complainant met with M1 and spoke with him on the areas where she disagreed with his evaluation. After their discussion, Complainant indicated that she would not sign the evaluation. M1 acknowledged Complainant’s refusal to sign her evaluation. M1 stated that he used various reports to support his ratings, as well as feedback provided by Disability Examiners (DEs) and personal observations of Complainant’s performance. M1 further stated that during their discussion he provided Complainant feedback on each element and outlined the information he considered when assessing her performance. M1 stated that Complainant did not dispute his reasoning during their meeting and was very quiet. At the end of the discussion, Complainant indicated that she would be adding the appraisal to her EEO complaint. Complainant also told M1 that she believed her rating was related to her claims. 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. In accordance with Complainant’s request, 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. CONTENTIONS ON APPEAL Complainant did not file a statement on appeal. The Agency submitted a brief in support of its final decision. 0120170969 5 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”). To prevail in a disparate treatment claim, absent direct evidence of discrimination, 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 carries the initial burden of establishing 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 802 n.13. 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). For purposes of our analysis, we will assume, arguendo, that Complainant established a prima facie cases of discrimination based on sex, disability, age and reprisal. We find that the Agency articulated legitimate, non-discriminatory reasons for their selection decision and for not selecting Complainant. M2 explained that she considered the interview rating scores, candidate applications, and supervisory recommendations to rank the four finalist candidates and to make her recommendation to M3, the selecting official. S1 was ranked first out of the four finalists. He had the highest consensus interview score and was the only candidate who was “highly recommended” by their supervisor. S1 was also the highest producing Program Leader with respect to managerial case reviews, volunteering for duties outside his core responsibilities, and he was seen as having a proactive demeanor. In a non-selection case, such as this, a complainant may show that an employer’s reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to those of the selectee. Wasser v. Dept. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); See also Burdine, 450 U.S. at 259 (noting that in making hiring or promotion decisions, the employer has discretion to choose among 0120170969 6 equally qualified candidates, provided the decision is not based upon unlawful criteria). In the instant case, Complainant did not establish that her qualifications were plainly superior to S1. Regarding Complainant’s performance rating claim, we also find that the Agency articulated a legitimate, non-discriminatory reason for the ratings Complainant received on 5 of her 6 performance elements. The record indicates that Complainant’s evaluation was based on her level of production. The Agency stated that her production level was lower than that of her co-workers. Complainant failed to present evidence that demonstrated that the reason asserted by the Agency was a pretext for discrimination. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. 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. 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. 0120170969 7 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. 0120170969 8 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 November 16, 2018 Date Copy with citationCopy as parenthetical citation