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

Equal Employment Opportunity Commission

Feb 11, 2021

Appeal No. 2021001376 (E.E.O.C. Feb. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denisse Y.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2021001376 Hearing No. 520-2017-00682X Agency No. NY-2017-0075-SSA DECISION On November 25, 2020, 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 October 28, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-8, at the Agency’s Social Security Office in Newburgh, New York. On January 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability and race (Black/African-American) when: 1. On September 20, 2016, she was not selected for the Lead Customer Service Representative (LCSR) position advertised under Vacancy Announcement Number SN 1750795-16ROII 170; 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. 2021001376 2 2. On May 20, 2016, she was not selected for the Claims Representative, GS-9, position advertised under Vacancy Announcement Number SN 1640210-NY- BC16-007; 3. In April 2013, her request for training was denied; and 4. On April 1, 2013, her request for the Voluntary Leave Transfer Program (VLTP) was denied.2 The Agency dismissed claims (2), (3), and (4), pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency accepted claim (1) and conducted an investigation, which produced the following pertinent evidence. Regarding her physical disability, Complainant attested that she has multiple spine and neck conditions and arthritis which, when active, limit her ability to walk and bend and require her to be on bed rest for 2 to 4 days. She attested that management had been aware of her condition since October 2011. The responsible management officials gave varying answers as to whether they knew of Complainant’s disability during the selection process. The District Manager of the Manhattan Card Center (Manager1) and the Manager of the Bronx Social Security Card Center (Manager2) attested that they had never met or worked with Complainant and were not aware of Complainant’s disability. The Assistant Manager at the Social Security Office in Newburgh, New York (Manager3) attested that she had been Complainant’s second-line supervisor and was aware of Complainant’s disabilities. Complainant attested that she applied for the LCSR position at issue and, while she scored high on the questionnaire, she did not get the position. She attested that she believed she was better qualified than the selectees due to her experience and the fact that she is the only Service Representative in her office. She attested that she trained and continues to train new hires at the GS-11 level on programs they administer and indicated that she is an expert in her position and nobody in her office can process work as quickly. Complainant attested that she believed she was not selected for the position based on her use of leave without pay (LWOP) for her disability. She attested that, since 2013, she had used approximately 420 hours of LWOP for her back condition and, although she provided medical documentation, it was used against her in all decisions not to promote or train her. Vacancy Announcement Number SN 1750795-16ROII 170 indicates that there were a few vacancies in Bronx, New York and New York, New York. 2 Complainant did not include race as a basis in her formal complaint. However, she raised it during the course of the processing of her complaint. 2021001376 3 Manager1 attested that she was the selecting official for the LCSR positions at the Manhattan Card Center. She attested that the desired qualifications were working knowledge of the enumeration program, excellent interviewing, organizational and research skills; experience training and mentoring new and existing employees; the ability to review pertinent information and material to resolve conflicts and discrepancies; and the ability to investigation and resolve complex issues. Manager1 attested that Complainant was on the list of candidates for the position, but she was not one of the three selected candidates. She explained the selection process, noting that there were no interviews conducted. She attested that she reviewed each candidate’s application package carefully; spoke to each candidate’s District Manager, discussing each candidate’s qualifications in detail; and, based on her discussions with each manager, decided the selectees were the best qualified candidates. She attested that Complainant was qualified and recommended for the position by her District Manager, but the selectees were highly recommended. Manager2 attested that he was the selecting official for the LCSR positions in the Bronx Card Center. He attested that the qualifications he was seeking were interpersonal skills, dependability, technical skills, accountability, and motivation. He attested that he did not interview candidates for the position and stated that two employees from the Bronx Card Center were selected. He attested that Complainant was not recommended for the position, while the selectees were highly recommended. He also attested that the selectees were also working in his office and had specific experience in the work they would be doing in this position. Manager3 attested that she was contacted to provide a reference for Complainant regarding the position at issue. She explained that that there was a form for managers to complete that included questions addressing the abilities and skills of the candidate in reference to the position being filled. She attested that she recommended Complainant with reservations, noting that they had some issues with Complainant’s accuracy in the past and they had to lessen some of her more complicated workloads and retrain her on some things. She attested that she believed Complainant would grow into one of the positions she desires, but she was not ready. Complainant submitted a statement indicating that Manager1 and Manager2 “did no wrongdoing” but also suggesting that Manager3 was biased in her recommendation. Complainant also generally denied that she had issues with accuracy since an incident in 2016. 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 July 2, 2020, motion for a decision without a hearing and issued a decision by summary judgment on September 30, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2021001376 4 The instant appeal followed. On appeal, Complainant submits evidence relating to other alleged instances of discrimination. In so doing, she argues that the responsible management officials in those instances made false and inconsistent statements regarding their knowledge of her race and/or disability status and asserts that her co-workers knew that she was treated unjustly due to her disability. She also includes evidence relating to these additional allegations. In response, the Agency notes that Complainant attempted to reinstate her untimely claims and address other claims that had been previously litigated, and the AJ dismissed Complainant’s efforts. The Agency also notes that, where Complainant had alleged a new instance of discrimination, the AJ had ordered Agency to process that new allegation and that claim is currently pending. The Agency argues that the appeal should be dismissed because the AJ properly determined that there were no genuine issues of material fact and Complainant did not demonstrate that the Agency’s legitimate, non-discriminatory reasons for not selecting her were pretext for discrimination. ANALYSIS AND FINDINGS Dismissed Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The regulation set forth in 29 C.F.R. § 1614.604(c) states that time limits are subject to waiver, estoppel, and equitable tolling. Here, the alleged discriminatory event in claim (2) occurred on May 20, 2016; the event in claim (3) occurred in April 2013; and the event in claim (4) occurred on April 1, 2013. The record shows that Complainant first contacted an EEO Counselor on October 13, 2016, which is more than 45 days after each of these alleged events. Therefore, these claims are untimely. The EEO Counselor’s report indicates that Complainant requested a waiver for not filing within the 45-day time frame because she was receiving treatment for a back condition and pregnancy. She stated that her back condition got progressively worse between 2013 and 2016 and she frequently used LWOP, approximately 6 to 8 days per month. She also explained that it was also medically necessary for her to leave six weeks early for maternity leave. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, the Commission has held consistently that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992); and Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Complainant’s vague statements that, from 2013 to 2016, she experienced back pain and pregnancy difficulties are insufficient to establish that she was so incapacitated as to render her physically unable to make a timely filing. 2021001376 5 Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claim. Complainant waited over 3 years before filing claims (3) and (4). For all these reasons, we find Complainant has failed to provide sufficient justification for extending or tolling the time limit with respect to any of the dismissed claims. Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Complainant alleged that the Agency treated her disparately in not selecting her for one of the LCSR positions. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802 at n.13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 2021001376 6 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, as discussed above. The selecting officials for both locations where there were vacant LCSR positions attested that, while Complainant was qualified for the position, she was not selected because of her manager’s recommendation. Manager3 explained that, while she recommended Complainant, she did so with reservations, noting that there had been issues with Complainant’s accuracy in the past and they had to lessen some of her more complicated workloads and retrain her on some things. The selecting officials explained that the selectees were highly rated by their respective managers. Additionally, the selecting official for the Bronx location also attested that the selectees were also working in his office and had specific experience in the work they would be doing in this position. Although Complainant has alleged that Manager3 acted with a discriminatory animus in declining to recommend her highly, the record does not sufficiently support this allegation. In the absence of evidence of a discriminatory motivation, the Agency generally has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. In addition, the Agency has the discretion to choose among applicants who have different but equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Although Complainant has alleged she is more qualified than the selectees, she has not produced sufficient evidence to dispute the selectees’ qualifications or establish that she has superior qualifications to them. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Therefore, we find that Complainant has not established by a preponderance of the evidence, that the legitimate, non- discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. 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 (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 2021001376 7 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). 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. 2021001376 8 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 11, 2021 Date