01A10747
07-29-2002
Rachel Madrid and Marian Bergum Complainants, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Rachel Madrid and Marian Bergum v. Social Security Administration
01A10357; 01A10747
July 29, 2002
.
Rachel Madrid and Marian Bergum
Complainants,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal Nos. 01A10357 & 01A10747
Agency Nos. 98-0449-SSA & 98-0954-SSA
Hearing Nos. 360-99-8731X & 360-99-8732X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainants'
appeals from the agency's final orders in the above-entitled matter.
Since the underlying facts and testimony are substantially similar in
these cases, the Commission consolidates the appeals in accordance with
29 C.F.R � 1614.606.
Rachel Madrid (Complainant 1) alleged 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., on the bases of race/national origin (Hispanic), disability
(breast cancer), and age (62),<1> when on February 27, 1998, she was not
selected for the position of Legal Assistant, GS-986-7 at the agency's
San Antonio Office of Hearing and Appeals.
Marian Bergum (Complainant 2) alleged discrimination in violation the
ADEA, on the basis of age (64) when she was subjected to a hostile
work environment and not selected for the position of Legal Assistant,
GS-986-7 at the agency's San Antonio Office of Hearing and Appeals.<2>
Complainant 1 argues on appeal that it is undisputed that she was rated
higher than all but one of the selectees under the assessment criteria
and had seniority over all of the selectees. In addition, complainant
1 notes that no selecting official found fault with the quality of
her work and that several witnesses testified that the quality of her
work was good. Complainant 1 further argues that the agency failed to
follow its own selection guidelines and violated the National Agreement
regarding the merit promotion process. We find that even assuming
that the agency failed to follow its merit promotion process, there is
insufficient evidence in the record to support the finding that this
failure was motivated by discriminatory animus. While complainant 1
argues in support of her qualifications and seniority, the records shows
that all the selectees were qualified and the selecting officials made
their selections based upon productivity. Specifically, the selecting
officials all testified that the Office of Hearings and Appeals was under
Congressionally mandated goals which the Office was not meeting. Thus,
there was a particular emphasis in figuring out how to work quickly and
enhance the productivity of the Office. Both complainants have failed to
show how these criteria for selection were pretextual. The preponderance
of the evidence supports the agency's explanation that they selected
those individuals who they perceived to be the most productive.
Complainant 1 also argues in her appeal that the use of wholly subjective
factors was inappropriate and adduces evidence of improper motives.
The AJ found the use of productivity as a selection criteria to be an
objective standard. However, even if one was to view the selection
criteria as subjective, such fact alone does not prove discrimination.
The record as a whole shows that productivity was critical due to the
Congressionally mandated goals and we find no evidence of discriminatory
motives.
Complainant 1 also argues that the record, although incomplete, indicates
that the agency stipulated to age discrimination. Upon review of the
record, it appears that the agency conceded that complainant established
a prima facie case of age discrimination.<3> We do not find that the
agency stipulated to an ultimate finding of age discrimination. However,
even if the agency did stipulate to a finding of age discrimination,
such a stipulation would not have been justified based upon the record.
The AJ and the Commission are permitted to reject stipulations based
upon legal conclusions. See Thompson v. Department of Justice, EEOC
Petition No. 03920036 (August 19, 1993).
Complainant 1 also generally argues that failures of the selecting
official to follow procedure and to assess productivity in a more
objective manner indicates that her reasons were pretextual. However,
complainant 1 even recognizes that the selecting official had less than
three weeks on the job before making the selection, had never worked in
such a job, had not previously known the applicants, and had to study the
six-page job description of the Hearing Officer Clerk job to understand
the job. We find that any failures on the selecting officials part
were due to inexperience, rather than any discriminatory animus.
Complainant 2 argues on appeal that the Union Agreement prevented
management from evaluating employees based upon numerical indicators
because they oftentimes tend to be counterproductive. Moreover,
complainant 2 argues that the AJ erred in precluding questioning on
the Union Agreement. From complainant 2's argument it does not appear
that this issue is relevant. Just because an individual's performance
evaluation cannot be based solely upon productivity, does not mean that
productivity cannot be a selection criterion. Accordingly, we find no
error on the part of the AJ.
Complainant 2 also argues that the selection process was based upon
subjective criteria that has a discriminatory impact on applicants.
We find no such showing based upon our review of the record.
Complainant 2 also argues that the AJ erred in finding one of the
selecting officials credible. Specifically, complainant 2 argues that
one of the selecting officials (SO) stated under oath that he did not
talk about the testimony of other witnesses with his attorney during
the hearing's lunch break. Thereafter, SO asked to clarify his earlier
testimony by explaining to the AJ that he did ask his attorney how the
case was going, but did not talk about any specifics. We do not find
this testimony an indication that SO lacked credibility.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final agency
order because the Administrative Judge's ultimate finding following a
hearing, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.<4>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 29, 2002
__________________
Date
1 All references to age refer to the time that the discrimination
allegedly occurred.
2 Complainant 2 withdrew a claim of race discrimination at the hearing.
3 We note that the AJ also found that both complainant's established a
prima facie case of age discrimination.
4 We assume for the purposes of this decision that complainant 1 is a
qualified individual with a disability under the Rehabilitation Act.