[Redacted], Kathey Z., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2021002201 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathey Z.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021002201 Agency No. ATL-19-1129 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 December 28, 2020 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Management Support Specialist, GS-01015- 12 at the Agency’s Field Office in Clarksville, Tennessee. On September 20, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on sex (female) and disability (association with an individual with a disability) when, on July 31, 2019, Complainant was not selected for a GS-13 Social Insurance Administrator/District Manager position (Job Vacancy #SG-1053-1049-19-MBJ). After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant did not respond. 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. 2021002201 2 On December 28, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part 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). Complainant testified that she did not have a disability. However, Complainant stated that her daughter is bipolar with manic episodes. Complainant explained that management was aware of her daughter’s condition after her daughter had an episode in July 2017 and required hospitalization. Complainant further explained that her daughter had another episode requiring hospitalization in September 2017. Due to her daughter’s permanent condition, Complainant stated that she requested a lateral position from Operations Supervisor to Technical Expert so that she could have more flexibility with caring for her daughter as needed. Our review of the record reflects that the Agency articulated legitimate non-discriminatory reasons for not selecting Complainant for the position at issue. Complainant argued that she was more qualified than the Selectee (male, no disability or association with person with disability) for the position at issue. Complainant noted that the Selectee was the Operations Supervisor, and he was also her first level supervisor. 2021002201 3 Complainant explained that she had previously served as Operations Supervisor from September 2011 - February 2018, she had been an employee with the Agency since September 2003, and she previously ran the Agency’s Clarksville Office as the only manager on duty for four months in 2016. Complainant asserted that, in contrast, the Selectee had barely twelve months of supervisory experience. Complainant asserted further that the Selectee was still a Claims Specialist Trainee when he was first selected, in May 2018, for the Operations Supervisor position in the Clarksville office that became vacant following Complainant’s request for lateral transfer. When she learned she was not selected, Complainant stated that she contacted the Selecting Official who informed her that she was not selected for the position because she struggled as a Technical Expert. Complainant further indicated that the Selecting Official informed her that he thought “management had been more than accommodating to [Complainant]” which Complainant interpreted as management being more than accommodating due to Complainant’s daughter’s medical condition. The Selecting Official acknowledged that Complainant made the list of best qualified candidates. However, the Selecting Official testified that the Selectee was the highest rated candidate. The Selecting Official explained that he was Complainant’s third level supervisor, and in this position, he received ongoing feedback regarding all employees. Consequently, the Selecting Official stated that he reviewed performance discussions from management and performance feedback. A copy of Complainant’s performance evaluation indicates that Complainant received an overall rating of “successful” on her fiscal year 2018 - 2019 evaluations. The Selecting Official determined that Complainant was not highly recommended for the position, and therefore, she did not receive an interview for the position.2 The Selecting Official indicated that there were only two highly recommended candidates: the Selectee and another candidate, who were referred for an interview. The Selecting Official denied that Complainant’s daughter’s medical condition or Complainant’s sex were factors in his decision. The Selecting Official also denied ever stating that Complainant “ranked up there” on the best qualified list. Additionally, aside from Complainant’s assertion that the Selecting Official commented that management had been more than accommodating to Complainant, there is no other evidence in the record to substantiate this claim. The Assistant District Manager also confirmed that Complainant was not selected for an interview, and the Selectee had the highest score from the interview panel. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex or associated disability. 2 It appears that the Selecting Official relied on Complainant’s performance appraisal instead of direct recommendations from her first level supervisor who was also a candidate and who subsequently became the Selectee. 2021002201 4 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. 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. 2021002201 5 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 April 21, 2022 Date