Randee D.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 25, 2016

0120142136 (E.E.O.C. Mar. 25, 2016)

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

Randee D.,1
Complainant,

v.

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

Appeal No. 0120142136

Hearing No. 550-2013-00076x

Agency No. SF-12-0397-SSA

DECISION

On May 23, 2014, Complainant filed an appeal from the Agency’s May 12, 2014, final order
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 order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Contact
Representative, Technical Assistant, GS-9, at the Agency’s Bay Area Teleservice Center in
Oakland, California. Complainant’s first line supervisor during the relevant time was
Supervisor 1.

On February 9, 2012, Complainant applied for a GS-11 position as a Regional Teleservice
Operations Development Program (RTO-DP) Associate under Vacancy Announcement SF-
602234-12-AXB. This was a temporary promotion for developmental purposes with no
guarantee of permanent appointment. Complainant was found qualified at the GS-11 level and
referred for consideration.
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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On March 1, 2012, a seven-person management team headed by the Teleservice Center
Manager (Recommending Official), met to consider the four applicants identified as qualified
GS-11 candidates for the position. Besides the Recommending Official, the team included a
Deputy Manager and Supervisor 1, Supervisor 2, Supervisor 3, Supervisor 4, and Supervisor
5. At the meeting, the supervisors of the four GS-11 candidates presented the applicant’s work
performance, most recent performance evaluation, and their attendance and promotional
history. The managers ranked the candidates, the Selectee was ranked first and Complainant
was ranked fourth. The list was forwarded to the Selecting Official and he chose the Selectee.

On June 8, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when:

On March 12, 2012, Complainant was not selected for the San Francisco Regional
Teleservice Operations Development Program position, job announcement number SF-
602234-12-AXB.

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 (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on April 25, 2014.

In his decision, the AJ stated that no prima facie analysis was necessary because there was
substantial unrebutted evidence put forth by the Agency to explain its treatment of
Complainant. The AJ noted that in comparing the four candidates seeking the GS-11
developmental promotion, the management team noted that all had the same 2011 performance
evaluation rating and had been given 120-day temporary developmental assignments within the
year. The AJ stated the team observed, however, that Complainant and Candidate A had
recently been promoted to the GS-9 level, and unlike any of the other three applicants,
Complainant had previously held the same detail assignment. The AJ noted that the Selecting
Official relied exclusively on the recommendation of the Teleservice Manager and his
management team in choosing the Selectee for the position. The AJ noted that the Selectee
was recommended for the position instead of Complainant because Complainant had previously
received the same developmental promotion and the Selectee had not.2 The AJ also noted that
Complainant had been promoted recently to the GS-9 level. Finally, the AJ noted that the
Teleservice Manager stated the Selectee had demonstrated presentation skills and the ability to
manage multiple tasks and had participated in special projects including leadership of the 2011
Combined Federal Campaign.

2 When Complainant received her earlier developmental promotion she was working as a GS-8
and was temporarily promoted to a GS-9.

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The AJ noted Complainant acknowledged having previously received the same developmental
promotion as well as having been promoted within the year to a GS-9 position. The AJ
explained that Complainant took issue with the Teleservice Manager’s description of the
Selectee’s skills and experience, indicating she was “not aware” of his having given any
presentations and stating she did not consider his involvement with the Combined Federal
Campaign to be “work-related.” The AJ noted Complainant also questioned the Selectee’s
“ability to multi-task” suggesting that if he had such an ability, “he would not have boxes of
unfinished work left in his office.” The AJ stated Complainant’s concern appears misplaced
given that the Selectee’s Supervisor made clear that his quantity of work was 350% of
similarly situated technicians in other units and that any unfinished work was related to his
being assigned special projects of other administrative tasks.

The AJ found Complainant did not show that her qualifications for the temporary
developmental promotion so exceeded those of the Selectee that no reasonable person could
have selected him instead of her, or that the decision was based on sex rather than the
nondiscriminatory reasons given. The AJ noted that Complainant alleged that the Selectee had
a verbal confrontation with an irate customer in late 2011 or early 2012. The AJ stated that all
the principals involved in this matter deny being aware of the incident or having discussed
anything like it during their deliberations. The AJ recognized that Complainant acknowledged
that she did not have first-hand knowledge of the alleged incident but was told about it by a co-
worker. The AJ found that beyond her bare assertions, Complainant had not offered, nor does
the record contain, any evidence from which a reasonable trier of fact could infer that any of
the Agency’s actions in this matter are a pretext for discrimination.

The AJ pointed out that Complainant also alleged that the Teleservice Manager had a pattern of
promoting men rather than women. However, the AJ noted that in her deposition,
Complainant acknowledged that, in fact, the Teleservice Manager has promoted more women
than men. The AJ stated the fact that most of the promotions were at the GS-8 level or below
does not assist Complainant inasmuch as she has not disputed the Agency’s evidence that there
were significantly more employees in grades GS-8 and below rather than GS-9 and above.

In addition, the AJ stated that the Teleservice Manager’s alleged comment on some
undetermined date to Subordinate X that he did not want to write up “three old black ladies”
for whom he was their second line supervisor, while intemperate, proves little. The AJ noted
that Subordinate X stated it was the only such remark she considered sexist that she recalled
the Teleservice Manger ever making, it arose in the context of the Teleservice Manager asking
her for advice about the women who were her friends after he observed them not performing
their assigned duties with one directly cursing him. The AJ found the Teleservice Manager’s
statement was no more than a stray remark completely unrelated to Complainant’s not being
selected for the temporary promotion at issue.

Finally, the AJ noted Complainant alleged that she has been retaliated against as a result of
disputed disclosures she made during discovery in this case. The AJ found Complainant’s
concerns were not properly before him as she neither filed a motion to amend her complaint;

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nor has she shown that the alleged reprisal is like or related to her sex-based promotion claim.
The AJ stated Complainant could contact an EEO Counselor to discuss her concerns and rights
should she care to do so.

The Agency subsequently issued a final order on May 12, 2014. The final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 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”).

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no issues of material fact. We note that Complainant does not challenge the definition of the
issues in her complaint on appeal.

In the present case, we note the Agency articulated legitimate, nondiscriminatory reasons for
choosing the Selectee over Complainant. The Selecting Official followed the recommendation
of the management team, forwarded to him by the Teleservice Manager in choosing the
Selectee. The management team recommended the Selectee because he had not had an
opportunity to participate in the RTO-DP, whereas Complainant had already done so. The
Agency noted that Complainant had previously served in the same detail assignment (although
at the GS-8 level), and she had only recently been promoted to the GS-9 level. The record
reveals the management team emphasized the need to give the entire staff equal opportunities
for growth and developmental assignments.

With regard to Complainant’s contention that on one occasion the Selectee was involved in a
verbal altercation with a customer in late 2011 or early 2012, we note that no member of the
management team involved in the present selection recalled having first-hand knowledge of the
alleged incident. Even assuming this incident occurred, the Teleservice Manager indicated that
given the rate of contact Teleservice employees had with the public, customer complaints were
not uncommon. Moreover, the Teleservice Manager stated that the Selectee’s overall
performance was exemplary. Upon review, we find Complainant failed to show her
qualifications were plainly superior to those of the Selectee.

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In addition, with regard to Complainant’s contention that the Teleservice Manager stated that
he did not want to write up “three old black ladies,” we note this statement did not arise in the
context of the present nonselection. Moreover, we do not find the comment sufficient to
constitute evidence of sex-based animus in Complainant’s non-selection. Upon review, we
find Complainant failed to show that the Agency’s articulated reasons for its actions were a
pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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.

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

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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

March 25, 2016
Date