[Redacted], Glinda M., 1 Complainant,v.Erhard R. Chorlé, Chair, Railroad Retirement Board, Agency.

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2021002955 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glinda M.,1 Complainant, v. Erhard R. Chorlé, Chair, Railroad Retirement Board, Agency. Appeal No. 2021002955 Agency No. 200129 DECISION On April 17, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 19, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant period, Complainant worked as an Investigative Technician, GS-7, at the Agency’s Program Evaluation and Management Services (PEMS) component of the Office of Programs in Chicago, Illinois. On January 29, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), color (Mocha Tan), age (over 40), and in reprisal for prior protected EEO activity (prior activity) when she was not selected for the Railroad Retirement Claims Examiner (Disability) position, GS-0993-11, Board Notice Number 19-70LCS. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued the instant final decision on March 19, 2021, finding no discrimination. 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. 2021002955 2 The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. On July 26, 2019, the Agency posted Vacancy Announcement No. 19-70LCS for Railroad Retirement Claims Examiner (Disability), a GS-07/09/11 position. The posting was for internal candidates who worked at the Agency. There was also an external posting for individuals who worked outside the Agency. The Bureau of Human Resources (HR) evaluated the internal and external candidates’ resumes with respect to their eligibility for the subject position. The HR Specialist initially determined that Complainant was not eligible for the position because she believed that Complainant had not provided the transcripts necessary to show her education. Complainant challenged this decision and the Chief of Workforce/Organizational Management Section found that Complainant was eligible. 2021002955 3 HR forwarded all of the eligible internal applications, including Complainant, to a panel for review. The panel consisted of the HR Specialist and the Disability Initial Supervisor Team A as the subject matter expert. The president of the union was on the panel as an observer. The selecting official (SO) was the Disability Benefits Division Director. The evaluation factors for the posting were as follows: 1) oral communication skills; 2) knowledge of disability claims processing; 3) written communication; 4) reading comprehension; 5) ability to transcribe data; and 6) mathematical ability. The information which was used to award points to the applicants consisted of the following: 1) the application; 2) performance appraisals; 3) a standardized claims examiner test; 4) an optional qualification narrative provided by the applicants; 5) any awards or negative actions that the applicants had received. The standardized claims examiner test was developed by the Office of Personnel Management OPM) and applied to evaluation factors three through six: written communication, reading comprehension; ability to transcribe data; and mathematical ability. For each of these evaluation factors, applicants could receive from zero to six points for the information provided in their applications, and an additional zero to six points for their test scores. For each of these evaluation factors, applicants could receive from zero to six points for the information provided in their applications, and an additional zero to six points for their test scores. For the factors of the reading comprehension, the ability to transcribe data, and mathematical ability, the total points award (for both the application and the test score) are doubled because the weight factor in those categories is two, while the points awarded for written communication are not doubled, because the weight factor is only one. Therefore, an applicant can receive 0-12 total points for written communication, and 0-24 total points for reading comprehension, the ability to transcribe data, and mathematical ability. The subject matter expert awarded points for each applicant based on their applications, while the points for the standardized test were automatically assigned based on each applicant’s OPM test scores. Based on the test results, Complainant’s score earned her one point for written communication and zero points for reading comprehension, the ability to transcribe data, and mathematical ability. Complainant was not the only candidate to receive one or zero points on any of the test modules. For written communication, Complainant received one point, and eight out of the fourteen other candidates received zero or one point. For reading comprehension, Complainant received zero points, and three of fourteen other candidates received zero points. In the ability to transcribe data, Complainant received zero points, and three of the fourteen other candidates received zero points. In mathematical ability, Complainant received zero points, and seven of the other fourteen candidates received zero points. Candidates were given a total pre-interview score based on their application materials, including test scores, and the top several candidates were granted interviews. Complainant received 44.14 total points before being interviewed, making her the eleventh-ranked candidate while the top three candidates had 88.32, 74.96, and 60.32 points. 2021002955 4 According to the union president, she explained that while Complainant’s ranking was low, the panel granted her an interview. She felt that getting an interview would help her in the future. Further, the panel conducted the interview, asking each candidate the same two questions. The panel awarded zero to four points for the candidates’ responses to the interview questions and conferred to make sure they agreed. Complainant received three out of four points for her interview responses. After awarding points for interviews, ten candidates were granted interviews and Complainant was ranked tenth out of ten candidates, receiving 48.14 points out of a possible 132.2 The panel forwarded the final ranking to the selecting official. The panel forwarded the final ranking to the selecting official. Thereafter, she selected the top four candidates, but one candidate declined. With regard to the external applicants, the selection process was different than the internal candidates. The selecting official explained that she reviewed the external applications from a different list, and she and the subject matter expert performed the interviews over the phone. Following the interviews, the selecting official selected the top three candidates from the external panel list. The selecting official acknowledged that she reviewed Complainant’s entire packet information and found one point previously not credited. Specifically, she stated that there was a procedural error in the distribution of points “which resulted in a difference of one additional point credited to her score for the ‘Knowledge of disability claims processing.’ I forwarded a description of this procedural error to the Director of Administration in accordance with Article 20, Section 8 of the National Agreement. This error did not impact the ranking of the selected candidates and not alter my selection.” The selecting official further explained that Complainant’s race, sex, color, age and prior protected activity were not factors in her decision not to select her for the subject position. She stated that her selections were based on the candidates’ ranking. She noted that noted that Complainant’s overall score “went from 47.14 to 48.14 points out of a possible 132.00 points; she was awarded 36% of the total points possible and was ranked last on the list.” Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decision was a pretext masking discrimination based on race, sex, color, age or prior EEO activity. Complainant has not shown that the alleged disparities in qualifications between her and the selectees were “of such weight and significance that no reasonable person, in the exercise if impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). 2 The record reflects that Complainant was initially awarded 47.14 points, but when she requested administrative review of her application, an error was found and she was awarded an additional point. This additional point did not affect Complainant’s ranking or the selection. 2021002955 5 While the record supports a determination that Complainant appears to have a distinguished career and many achievements, she nevertheless did not establish that her qualifications were superior to of the selectees for the subject positions. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021002955 6 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. 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 August 10, 2021 Date