[Redacted], Clinton R.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 2020000341 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clinton R.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000341 Hearing Nos. 520-2018-00348X 520-2019-00238X Agency Nos. NY-18-0120-SSA NY-18-0753-SSA DECISION 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 August 22, 2019, final order concerning his consolidated 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., 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 order finding no discrimination. BACKGROUND At the time of events giving rise to his complaints, Complainant worked as a Social Insurance Specialist, GS-105-11, in the East Bronx District Office where he has worked for over 41 years. On December 21, 2017, and August 13, 2018, Complainant filed EEO complaints alleging that he was discriminated against when: 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. 2020000341 2 (1) on November 13, 2017, because of his of age (over 40), reprisal (prior EEO activity), race (White), and religion (Jewish), he was not selected for a Claims Technical Expert (CTE) position under vacancy announcement SN-10058240-18- ROII; and (2) on June 11, 2018, because of his age (over 40), sex (male), reprisal (prior EEO activity), race (White), and religion (Jewish), he was not selected for the CTE position under vacancy announcement SN-10202322-18-ROII. With respect to Claim 1, the record indicates that in October 2017, the Agency posted a job announcement for a GS-12, CTE position in the East Bronx Field Office. The Selecting Official for the position was A1, District Manager for the office. The Concurring Official was A2, the Area Director. A1 received the application packages for the candidates, and after reviewing each application package, she contacted the managers of the candidates on the best-qualified list and discussed their respective skills, qualifications and recommendations. She then conferred with A2, who also reviewed the application packages. Interviews were not conducted. On or about November 13, 2017, Complainant learned that he was not selected for the CTE position. C1 (Black, female, over 40, no prior EEO activity, religious affiliation unknown), a former GS-11 Claims Specialist from the New Rochelle Field Office, was selected for the position. A1 stated that she selected C1 because she had a strong technical background in Title II2 and Title XVI3 programs, strong organizational skills and strong interpersonal skills. A1 also stated that she received positive feedback from C1’s supervisor, S1, who highly recommended C1 for the position. S1 stated that C1 was a self-starter and very knowledgeable in both Title II, and Title XVI programs. He also stated that C1 had leadership skills, was “responsible, nurturing and responsive to requests for assistance from her coworkers and management,” and that she did “very well” in the leadership program. He also noted that C1 was an Operations Supervisor for a year, and he heard she did an “excellent job.” According to A1, she did not select Complainant because she did not believe he was more qualified for the position. She was familiar with Complainant’s work since they were in the same office. While his knowledge of Title II was very strong, she felt that he was not as strong in Title XVI. She also felt that he was lacking in interpersonal skills and was unable to control his temper. Furthermore, she felt he had “very little” leadership qualities and was unable to multi-task. A2 concurred with the decision to select C1. She stated that she considered the information from S1, as well as her own knowledge of C1’s work. A2 indicated that C1 had “great interpersonal and leadership skills,” and was also “technically proficient.” 2 Title II provides for payment of disability benefits to disabled individuals who are insured under the Act due to their contributions to the Social Security trust fund via the Social Security tax on their earnings, as well as to certain disabled dependents of insured individuals. 3 Title XVI benefits are funded by general tax revenues, unlike Title II benefits which are funded by Social Security taxes. These benefits can help disabled individuals who face severe financial hardships with cash assistance for basic needs and living expenses. 2020000341 3 She also stated that C1 did “extremely well” in the Regional Supervisory Development Program. A2 found that Complainant had poor interpersonal and leadership skills. A2 was aware that Complainant had previously served in a Technical Expert position, but she felt his position was distinguishable from the CTE position at issue because it had a specialized workload as part of the Title II Program. The CTE position at issue was a generalist position, which required proficiency in both Titles II and XVI, and A2 did not find that Complainant had a lot of experience in Title XVI. Regarding claim 2, the record indicates that in May 2018, the Agency posted a job announcement for a temporary Social Insurance Specialist position.4 A1 and A2 were again the Selecting and Concurring Officials. A1 contacted the managers of the candidates from outside the East Bronx Field Office to obtain recommendations, and she reviewed the candidates’ skills, qualifications, knowledge and experience with those managers. For those candidates within the office, she relied on her own observations and knowledge of the candidates’ work and performance. A1 then reviewed the recommendations with A2. As before, there were no interviews conducted. A1 stated that she considered the candidates based on the following criteria: technical proficiency in Agency programs (both Title II and Title XVI), interpersonal skills, i.e., approachability and the ability to mentor and serve as a resource, and organizational skills, i.e., the ability to prioritize and complete assignments in a timely manner. She stated that technical skills were important, but it was also critical that the CTE have good interpersonal skills because he or she would be required to mentor others. She also indicated that the selectee must be able to multi-task because, in addition to mentoring others, they would be responsible for his or her own workload. A1 selected C2 (Hispanic, female, age 31, no prior EEO activity, religious affiliation unknown) because she maintained C2 had extensive knowledge of and was trained in both Title II and Title XVI programs, was able to multitask, mentor and work closely with others, was a resource person to the staff, and had good organizational skills, and had “excellent” interpersonal skills. A1 stated that she did not select Complainant because, although he was a generalist with strong knowledge in Title II, he was not as knowledgeable as C2 in Title XVI. She also felt that he lacked organizational skills, had difficulty prioritizing his work and meeting deadlines. She also felt that he lacked interpersonal skills and came across as “abrupt.” She noted that “[t]here have been times when people have tried to engage in a conversation with Complainant and he raised his voice (screamed) and used profanity in response.” A2 concurred with the selection because she agreed that C2 was technically proficient in both Title II and Title XVI, and that Complainant was strong in Title II, but was less proficient in Title XVI. A2 also felt that in addition that C2, unlike Complainant, had great interpersonal skills, good organizational skills and completed her work assignments in a timely fashion. 4 According to the record, the only distinction between the two positions is that the position at issue in claim 2 was a temporary position, which had the possibility of becoming permanent. 2020000341 4 In his affidavit, Complainant stated that: regarding my interpersonal skills, it depends on with whom you are talking. In my opinion, [A1 and A2] believe it is okay for employees to interrupt me to request assistance while I am in the middle of a conversation with a claimant. I do not react well to someone who comes to me demanding an immediate response when I am in the middle of a telephone call, or an interview with a claimant, and who does not give me time to turn away from what I am doing to talk to them. A lot of people have no sense of boundaries. Complainant also stated that “[p]eople who think you are supposed to turn to them immediately when they come to you while you are in the middle of you doing something else may think I am unapproachable. If you say, ‘back off’ they claim you are being obnoxious.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The Agency filed a Motion for Summary Judgment. Complainant opposed the Agency’s motion. The AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on August 2, 2019. The AJ, in granting the Agency’s motion, adopted the undisputed material facts in the Agency’s motion into his decision. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. On appeal, Complainant’s argues, that the AJ erred in finding that C1 and C2 were better qualified for the positions than he was. In support of this contention, he noted that “[i]n the course of my work I have run into several examples of poor work done by the selectees. These are, of course, only anecdotal and do not reflect [a] systematic review of their work but should give one pause before saying that they were superior candidates.” Complainant then notes three examples of “poor work” by C1, and two such examples by C2. Complainant did not indicate when these incidents occurred, i.e., before or after the promotions at issue. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. 2020000341 5 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trail, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We have carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. We find that the AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (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). 2020000341 6 To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination on all alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for each of its selections, i.e., C1 and C2 were determined to be more qualified for the positions than Complainant. We find no persuasive evidence of pretext here. Although Complainant maintained that he was more qualified because he had more years of experience than C1 and C2, the fact remains that the Commission has long held that mere years of service, or length of service, does not necessarily make an individual more qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither does years of service automatically make an individual more qualified. Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19, 1991). Upon reviewing the totality of the record, we simply do not find that Complainant’s qualifications were observably superior to those of C1 and C2. We note in this regard that both candidates, among others, were deemed qualified and were referred to A1 for consideration for the positions. Although Complainant had more years of experience and was generally recognized as having a strong Title II background, his application did not indicate that he would have been better in the positions than the selectees. A1 and A2 both noted that Complainant’s interpersonal skills played an important role in both selections. Complainant did not provide evidence that created a genuine issue of material fact that interpersonal skills were either not important for the position or that his skills were not lacking in this regard.5 On the contrary, he provided support for A1 and A2’s position by stating that, “I do not react well to someone who comes to me demanding an immediate response when I am in the middle of a telephone call, or an interview with a claimant, and who does not give me time to turn away from what I am doing to talk to them.” The Commission will not substitute our judgment for the judgment of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6. 1998). We find no such evidence of proscribed considerations here. 5 We also do not find that he raised a genuine issue of material fact requiring a hearing with respect to his assertion on appeal that, over his years of employment, he was aware of five mistakes committed by C1 and C2. In addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. 2020000341 7 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000341 8 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 16, 2021 Date