Regina M.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 6, 2016

0120142229 (E.E.O.C. Jul. 6, 2016)

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

Regina M.,1
Complainant,

v.

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

Appeal No. 0120142229

Hearing No. 420-2013-00212X

Agency No. ATL-12-0767-SSA

DECISION

Complainant filed an appeal from the Agency’s May 1, 2014, final decision concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Teleservice
Representative, GS-9, at the Agency’s work facility in Birmingham, Alabama.

On September 27, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her in reprisal for her prior protected EEO activity when:

1. On July 20, 2012, Complainant was informed that she was not selected for the
position of Benefit/Authorizer/Legal Administrative Specialist position advertised
under Vacancy Announcement SB-672331-12-RBS.

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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2. On August 8, 2012, Complainant did not receive a Recognition of Contribution
(ROC) award and has not received a ROC award since 2006.

3. Complainant also claimed that she was subjected to retaliatory harassment when:

a. In April 2012, management denied Complainant’s request to realign her shift
schedule.

b. In May 2012, while on a detail assignment, management did not allow Complainant
to work overtime in her original component. However, while on the detail
assignment, management required that she work in her original component on the
component’s Level One days.

c. In May 2012, Complainant’s second line management requested to meet with her
regarding a discourtesy conduct issue. Subsequently, Complainant’s second line
manager met with her, apologized and said he had heard differently regarding the
discourtesy conduct issue.

The Agency accepted claims (1-2) for investigation. The Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with
an EEO Counselor in a timely manner. The Agency noted that the alleged discriminatory
events occurred in April and May 2012, but Complainant did not initiate contact with an EEO
Counselor until August 7, 2012, after the expiration of the 45-day limitation period.

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
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The Agency noted that Complainant previously filed ten formal EEO complaints
from 2004 through 2010. With respect to claim (1), Complainant applied for the position of
Benefit Authorizer/Legal Administrative Specialist and received a score of 100, which made
her eligible for the Best Qualified list; however, she was not selected for the position. There
were nine selectees for the position, two of whom were employees of the Teleservice center.
There had been 167 candidates eligible for promotion and eight eligible for a reassignment that
were certified. The Agency noted that Complainant asserted that she was better qualified than
the two selectees from the Teleservice center based on her work experience, knowledge of
Social Security regulations, and contributions toward Agency achievements.

The selecting official stating that in determining the best qualified candidates for the position
she compared Complainant’s qualifications to those of other applicants and determined that
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Complainant was not among the best qualified. According to the selecting official, she based
her decision on the Manager’s (Complainant’s first line supervisor) recommendation, awards
received, and work experience. The selecting official stated that the Manager’s
recommendation for Complainant identified six out of ten areas where she needed
improvement. The Manager stated that Complainant was recommended with reservation.
According to the selecting official, she removed Complainant from further consideration when
she did not receive a highly recommended rating. The selecting official explained that the nine
selectees all received a highly recommended rating from their managers. The selecting official
maintained that she was unaware of whether any of the selectees had prior EEO activity. The
Agency stated that the selecting official asserted she was not aware of any prior EEO activity
on the part of Complainant. The Agency further stated that two of the nine selectees had prior
EEO activity and that among the 57 selections made by the selecting official in the prior two
years, fourteen percent of those selectees had engaged in EEO activity.

With respect to claim (2), the Agency observed that Complainant stated she should have
received a ROC award based on her performance and outstanding work contribution to her unit
and the Agency. Complainant claimed she received positive feedback from customers, Field
Offices and OIG offices. Complainant asserted that nonetheless her Manager did not consider
such positive feedback with regard to her performance evaluation and the issuance of awards
and that instead she sought to find fault in her performance. According to Complainant, she
refused to sign her performance review because she believed that she was treated unfairly by
the Manager. The Agency noted that Complainant claimed she has not received a performance
award since 2006.

The Manager stated that in order to receive a ROC, an employee must have a 4.0 performance
rating and Complainant’s performance rating for Fiscal Year 2011 was 3.0. The Manager
maintained that Complainant did not provide examples of her outstanding contributions. The
Manager stated that an employee who receives a complimentary letter is not necessarily
outstanding. According to the Agency, Complainant was informed in her final rating
discussion of performance issues in need of improvement.

The Agency determined that Complainant failed to establish a prima facie case of reprisal with
regard to claims (1-2). The Agency stated that Complainant failed to establish that officials
responsible for taking the alleged discriminatory actions had prior knowledge of Complainant’s
EEO activity. The Agency further relied on the fact that Complainant’s most recent prior EEO
activity occurred in 2010 and the actions at issue did not take place until July 2012 and August
2012, respectively. The Agency reasoned that the timeline between the prior EEO activity and
the alleged reprisal was too attenuated to establish causation.

The Agency stated that even if both the Manager and the selecting official were aware of
Complainant’s prior EEO activity, Complainant nevertheless was placed on increased service
observation due to her performance and that this almost certainly precluded a highly
recommended recommendation. The Agency maintained that the fact that two of the nine
selectees had prior EEO activity tends to diminish Complainant’s claim that EEO activity
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prevents employees from receiving fair consideration in selection actions. As for claim (2),
the Agency determined that it established that the reason Complainant did not receive a ROC
award is because she failed to meet the established criteria and not because of any retaliatory
motive on the part of Agency officials. Further, the Agency noted that there were two
recipients of the ROC award from Complainant’s unit and one of them had engaged in EEO
activity.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Manager had to be aware of Complainant’s prior
EEO activity. Complainant points out that she had a successful appeal before the Commission
and a notice would have been inserted in a conspicuous place at the facility. Complainant v.
Social Security Administration, EEOC Appeal No. 0120110169 (November 30, 2012).
Complainant further states that the Manager was notified that she would need official time to
participate in EEO matters. In terms of the temporal proximity of Complainant’s EEO activity
to the matters at issue, Complainant argues that immediately prior to the Commission decision
in her favor, her evaluation was “Satisfactory”. Complainant notes that in her mid-term
evaluation six months after that Commission decision the Manager was critical of her job
performance and stated that her performance had declined in the six-month period.

Complainant maintains that it is irrelevant whether or not the selecting official was aware of
her prior EEO activity. According to Complainant, the key point is that the selecting official
relied on the Manager’s recommendation and the Manager held retaliatory motivation toward
her. Complainant contends that the Agency has not offered examples as to how her
performance was poor or what critical elements she was failing. With regard to not receiving
a ROC award, Complainant argues that others have received a ROC award with a rating of less
than 4.0. Complainant claims that one employee who received a ROC award had a rating of
3.5 on her year end review.

In response, the Agency asserts that the Manager was generally aware Complainant had
engaged in EEO activity, but was unaware of any of the specifics of her prior claims. The
Agency states that the Manager approved Complainant’s requests to work on her prior EEO
complaints and monitored the amount of time she spent on those matters. The Agency
maintains that during Complainant’s mid-year performance discussion on April 24, 2012, the
Manager informed Complainant that although she demonstrated a courteous attitude with the
public, she was frequently argumentative and combative when responding to constructive
feedback from management and technical assistants. The Agency states that Complainant was
urged to handle herself in a calm and professional manner and abstain from using offensive
language. According to the Agency, the Manager also informed Complainant that she needed
to improve in timely logging on to the telephone at her scheduled duty time. Complainant was
told that she was not adhering to the availability policy as she was consistently taking long
breaks and lunches. Additionally, Complainant was informed that she had been observed by
management away from her duty station outside of the breaks and lunch time periods. The
Manager further explained to Complainant that the accuracy of information she provided to the
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public was deficient. The Manager stated that as a journeyman, Complainant was expected to
maintain a level of accuracy above 90 percent, but instead her accuracy was currently 62.5
percent. Complainant was informed that she would be placed on an increased service
observation to help determine her areas of deficiency and evaluate what assistance to provide.

ANALYSIS AND FINDINGS

Initially, we shall address the Agency’s dismissal of claim (3). The record reflects that the
incidents at issue in claim (3) occurred in April 2012 and May 2012. Complainant did not
initiate contact with an EEO Counselor until August 7, 2012, after the expiration of the 45-day
limitation period for contacting an EEO Counselor. Complainant has not provided adequate
justification to warrant an extension of the 45-day limitation period. Accordingly, the
Agency’s dismissal of claim (3) on the grounds of untimely EEO Counselor contact is
AFFIRMED.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of reprisal with regard
to both claims (1-2). The Agency explained as to claim (1) that Complainant was not selected
for the Benefits Authorizer position due to the selecting official’s determination that the
recommendation for Complainant from the Manager was not as favorable as that of the
recommendations for the selectees from their Managers. The selecting official noted that in
contrast to Complainant’s recommendation, all of the selectees were highly recommended by
their Managers. We find that the Agency has presented a legitimate, nondiscriminatory reason
for its selection decision.

With regard to claim (2), the Agency explained that in order to be considered for a ROC
award, an employee needed to have a PACS rating of 4.0 in their final PACS appraisal for the
prior fiscal year. Complainant’s Fiscal Year 2011 PACS rating was a 3.0. Thus, Complainant
did not receive a ROC award. We find that the Agency articulated a legitimate,
nondiscriminatory reason for its decision.

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Complainant attempts to establish pretext with regard to claim (1) by arguing that the
Manager’s retaliatory motivation toward her manifested itself in her recommendation with
reservation and that this influenced the selecting official to reject her for the Benefits
Authorizer position. Complainant further argues that in contrast to the Agency’s position that
the Manager was unaware of her prior EEO activity, the Manager was almost certainly aware
of her prior EEO activity given her successful Commission appeal and her requests to use
official time. We observe that the Agency acknowledges in its response that the Manager was
generally aware Complainant had engaged in EEO activity, but was unaware of any of the
specifics of her prior claims. We are not persuaded that Complainant’s prior EEO activity was
a factor in her nonselection. Complainant has not refuted the Agency’s explanation that her
job performance warranted improvement in several areas. Therefore, it was appropriate that
the Manager only provide a tepid recommendation of Complainant for the Benefits Authorizer
position. The record supports the selecting official’s position that her nonselection of
Complainant was based on the selectees’ each having a more favorable recommendation than
Complainant rather than the influence of retaliatory motivation.

With regard to claim (2), Complainant claims that there is one comparison who had a PACS
rating of 3.5 and nevertheless received a ROC award. However, the Agency points out that
Complainant relied on an error in the report of investigation. The Agency states that the basis
for this comparison’s ROC award presented in August 2012, was her PACS rating of 4.5 for
her Fiscal Year 2011 performance. The Agency states that the comparison had a PACS rating
of 3.5 for Fiscal Year 2012 which is the not the time period at issue. We take note of the
aforementioned performance deficiencies that contributed to Complainant not receiving a 4.0
rating. In light of these negative aspects of Complainant’s job performance, we find that
Complainant has not established that the Agency’s explanation for her not receiving a ROC
award was pretext intended to hide retaliatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:
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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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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
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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

July 6, 2016
Date