Mica B., Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143187 (E.E.O.C. Feb. 25, 2016)

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

Mica B.,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120143187

Agency No. PHI-12-0589-SSA

DECISION

Complainant filed an appeal from the Agency’s August 18, 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.

BACKGROUND

The Agency employed Complainant as a Claims Representative at its Field Office in Ambrose,
Pennsylvania. On August 31, 2012, she filed a complaint in which she alleged an Employee and
Labor Relations Specialist (ELRS), at the direction of the Acting Project Officer in the Center
for Human Resources (APO) had discriminated against her on the bases of race and reprisal by
placing her name on a “not-in-good-standing” list on January 18, 2012, and that the District
Manager of the Allentown Field Office, in his capacity as a Selecting Official (SO) had
discriminated against her on those same bases by not promoting her to a more senior Claims
Representative position on May 25, 2012. The Agency initially dismissed the Complaint for
failure to state a claim, but in Complainant v. Social Security Administration, EEOC Appeal No.
0120131220 (October 24, 2013), the Commission reversed the Agency’s final decision and
ordered the Agency to investigate.

1This 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 18, 2012, the date that Complainant was placed on the list, she and a manager, who
has since retired, entered into a settlement agreement in order to resolve a previously filed EEO
complaint. One of the provisions of the agreement required the Agency to remove all references
to a proposed removal from her official personnel file. Complainant did not become aware that
she was on the list until May 14, 2012, when she applied for promotion and received a
notification from the Human Resources Office that she was on the list and was consequently
ineligible for those positions. Investigative Exhibit (IE) 9a, pp. 7-8.

The ELRS averred that at the direction of his supervisor, the APO, he placed Complainant’s
name on the not-in-good-standing list on January 18, 2012, retroactive to April 19, 2011. IE 10,
pp. 3-4. He also expressed his belief at the time that Complainant was either on or had failed an
opportunity to perform successfully (OPS), another name for a performance improvement plan.
IE 10, p. 5. Finally, he stated that he was not aware of Complainant’s race or previous EEO
activity. IE 10, pp. 5-6. The APO averred that Complainant was on an OPS since 2011, and that
employees on an OPS are not considered to be in good standing. IE 11, p. 3. She also averred
that she was not aware that Complainant should not have been on the list until she was notified
of that fact by the Manager of the Office of Civil Rights and Equal Opportunity (OCREO
Manager) in May 2012, and that as soon as she become aware of the mistake, Complainant was
removed from the list on May 15, 2012. IE 11, p. 4; IE 13, p. 5.2 Two Staffing Specialists also
attested to the fact that Complainant’s name was immediately removed from the list as soon as
the error came to light, as did Complainant herself. IE 9a, p. 4; IE 12, pp. 5-6; IE 15, pp. 4-5; IE
19a, p. 3; IE 19b, pp. 2-3.

On May 25, 2012, Complainant learned that she had not been selected for promotion. She
averred that she was not referred to the SO because she had been identified as being “not in good
standing.” IE 9a, p. 9. The Staffing Specialist assigned to handle the vacancy announcement
averred that she had sent out a best-qualified list (BQL) that had excluded Complainant’s name,
but subsequently sent out a revised BQL that did include Complainant. She further averred that
she did not divulge any information to the SO as to why the second BQL had been issued, but
advised the SO to make his selections from the revised BQL. IE 15, pp. 4-5. The SO confirmed
that he had made his selections from the revised BQL, and that he chose the selectees due to the
fact that they both came from his district office in Allentown, Pennsylvania. IE 16, pp. 4-6.
2In Complainant v. Social Security Administration, EEOC Appeal No. 0120131769 (October 24,
2013), we remanded the matter for a supplemental investigation as to whether the Agency’s
failure to comply with the relevant provision of the settlement agreement had resulted in her
name appearing on the list. Ultimately, in Complainant v. Social Security Administration,
EEOC Appeal No. 0120141263 (July 25, 2014), we found that the Agency had breached the
settlement agreement and ordered it to comply with the settlement provision in question, to the
extent that it had not already done so. And in Complainant v. Social Security Administration,
EEOC Compliance Action No. 0620140665 (October 30, 2014), we determined that the Agency
had completed all of the necessary corrective action in connection with our decision in Appeal
No. 0120141263.

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At the conclusion of the investigation, the Agency notified Complainant 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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for those decisions. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in
order to prevail on her disparate treatment claim, Complainant would have to prove, by a
preponderance of the evidence, that the APO was motivated by unlawful considerations of her
race or previous EEO activity in connection with Complainant’s name being placed on the not-
in-good-standing list on January 18, 2012, and that SO was similarly motivated when he declined
to select her for a Claims Examiner promotion on May 25, 2012. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Complainant can do so in circumstantial-
evidence cases such as this by presenting documents or sworn testimony showing that the
reasons articulated by the APO and the SO for their actions are pretextual, i.e., not the real
reason but rather a cover for race discrimination or reprisal. St. Mary’s Honor Society v. Hicks,
509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253.

We begin with the incident pertaining to Complainant’s placement on the not-in-good-standing
list. Evidence of pretext can be discriminatory statements or past personal treatment attributable
to the APO, comparative or statistical data showing differences in treatment across racial lines,
unequal application of Agency policy, deviations from standard procedures without explanation
or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When
asked by the investigator whether she believed that her placement on the list was related to her
race and previous EEO activity, Complainant replied that her placement on the list was one of a
series of events that arose out of race discrimination directed towards her. Ex. 9a, p.8. However,
the APO, the ELRS, the OCREO Manager and two Staffing Specialists all provided sworn
statements that the only reason Complainant’s name appeared on the not-in-good-standing list
was an oversight, and nothing more. Complainant has not submitted any sworn statements from
other witnesses or documents that contradict the explanations provided by any of these officials
or which call their veracity into question. We therefore find, as did the Agency, that
Complainant has not proven the existence of a discriminatory motive on the part of the APO or
the ELRS in connection with their decision to place her on the not-in-good-standing list.

The same holds true for her nonpromotion. Evidence of pretext in nonselection cases can take
the form of a showing that Complainant’s qualifications for the position were plainly superior to
those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No.

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0120141721 (December 3, 2015). In her appeal, Complainant insisted that she was not promoted
because she was still on the not-in-good-standing list and that she was placed on that list because
of her race and her earlier EEO activity. Ex. 9a, pp.7-8. However, the SO testified that he chose
the selectees because they worked in the Allentown Office, where he was from. In addition the
Staffing Specialist, who handled the selection process, corroborated the SO’s affidavit testimony
that he made his selections from the revised BQL, which included Complainant’s name. Again,
Complainant failed to present any documents or witness statements that contradict the testimony
of the SO or the Staffing Specialist that the selectees were chosen from the second BQL, or
which undermine their veracity as witnesses. She has not provided any evidence of any of the
indicators of pretext described above. In particular, she presents no proof that the SO was even
aware of Complainant’s presence on the not-in-good standing list when he made his selections.
We therefore agree with the Agency that Complainant failed to prove that she had been subjected
to discrimination as alleged with respect to her allegation of not being promoted on May 25,
2012.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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.

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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

February 25, 2016
Date