0120141556
10-03-2016
Rodrigo C.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rodrigo C.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141556
Agency No. KC-12-0536-SSA
DECISION
On March 11, 2014, Complainant filed an appeal from the Agency's January 27, 2014, final decision concerning his equal employment opportunity (EEO) complaint 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected him to disparate treatment on the bases of race (African-American), national origin (Nigerian), and reprisal for prior protected EEO activity (EEO complaint filed in September 2011) in connection with an April 2012, non-selection for a GS-11 Claims Authorizer (CA) position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-8 Technical Support Technician (TST) at the Agency's Mid-America Program Service Center (MAPSC) in Kansas City, Missouri.
Complainant worked in Section 3, Module 15. A section was made up of multiple modules. Module employees were responsible for manually processing Social Security claims or actions that could not be processed by automation. A module had approximately 40 employees including GS-11 CAs, GS-9 Benefit Authorizers (BA), and GS-8 TSTs. Complainant's second-level supervisor was the Module Manager (S2 - Caucasian, German). Complainant's third-level supervisor was the Section Manager (S3 - Caucasian, American). Complainant's fourth-level supervisor was the Deputy Assistant Regional Commissioner for Processing Center Operations (S4 - Caucasian, American). Previously, from 2003 to 2006, Complainant worked as a GS-9 BA and S3 was his second-level supervisor.
In March 2012, Complainant applied for the position of GS-11 CA, advertised under job announcement number SK624771-12-276. According to the vacancy announcement, qualified applicants would have 52 weeks of specialized experience at least equivalent to the GS-9 level. The specialized experience was defined as: "experience in the development, examination, investigation or authorization of claims under a program for SSA benefits, health insurance, pension plan, income maintenance or related programs or experience which provided a broad knowledge of the subject area of the position to be filled." There were 17 vacancies and the applicants were limited to current MAPSC employees. Human Resources referred 88 eligible applicants, including Complainant, to S4 for selection consideration.
After S4 received the names of the eligible applicants, she sent the section managers the names of the eligible applicants within their section. S4 asked the section managers to provide a recommendation for each applicant within their section (highly recommended, recommended, or not recommended) and rank them from most to least able to successfully complete CA training.
S3, in turn, asked the module managers in Section 3 to provide a recommendation for each applicant within their module (highly recommended, recommended, or not recommended) and rate them (outstanding - 3 points, above average - 2 points, average - 1 point, or below average - 0 points) on 10 categories: interpersonal skills; participation; demonstrates job knowledge; achieves business results/productivity; quality; work habits; written communication; verbal communication; dependability; and flexible/cooperative.
S2 recommended Complainant and gave him a rating of 15 points (average on seven categories, above average on one category, and outstanding on two categories) out of a possible 30 points. S2 highly recommended Complainant's coworker (C1) and gave him a rating of 30 points (outstanding on all 10 categories) out of a possible 30 points. S3, in turn, recommended Complainant and ranked him 14th out of 16 applicants from Section 3.2 In contrast, S3 highly recommended C1 and ranked him 1st out of 16 applicants in Section 3.
After S4 received the recommendations and rankings from the section managers, she rated each applicant based on the following information contained in their applications: 10 points for having at least three years of relevant job experience; 4-8 points for receiving various awards;3 and 10 points for being highly recommended by the section manager. S4 gave Complainant a rating of 10 points (relevant job experience). S4 gave C1 a rating of 30 points (relevant job experience, performance awards, highly recommended). Subsequently, S4 selected the 17 applicants who received the highest ratings (25-30 points). The three selectees from Section 3 were all GS-9 BAs: C1 from Module 15 (Caucasian, national origin unknown, no prior protected EEO activity) and two applicants from other modules (Caucasian, national origin unknown, no prior protected EEO activity; African-American, national origin unknown, no prior protected EEO activity).
On July 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Nigerian), and reprisal for prior protected EEO activity (EEO complaint filed in September 2011) when, in April 2012, he was not selected for a GS-11 CA position.
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected him to discrimination as alleged. Complainant then filed the instant appeal. We will address Complainant's arguments on appeal below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he 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 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race, national origin, and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for his April, 2012, non-selection for a GS-11 CA position.
First, S2 explained why she did not highly recommend Complainant and gave him a rating of
15 points, compared to why she highly recommended C1 and gave him a rating of 30 points. Specifically, S2 averred that Complainant was an average employee who met the expectations of his position, whereas C1 was an outstanding employee who consistently exceeded the expectations of his position. In addition, S2 averred that Complainant produced a fair share of the work, whereas C1 produced a large volume of high-quality work. Moreover, S2 averred that Complainant occasionally volunteered for additional assignments, whereas C1 consistently volunteered for additional assignments and also participated in outside reviews and studies to improve organizational efficiency. Further, S2 averred that Complainant worked well with others, whereas C1 was respected by his peers and was often sought out for advice or information based on his job knowledge and analytical ability. Finally, S2 averred that C1 was the best employee in the module and the go-to person for difficult and complex issues.
Second, S3 explained why she did not highly recommend Complainant and ranked him 14th out of 16 applicants from Section 3. Specifically, S3 averred that she considered the information provided by S2. In addition, S3 averred that she considered her personal knowledge that Complainant did not have a successful experience as a GS-9 BA; he did not satisfy the requirements to be released from the review process as a GS-9 BA and he voluntarily took a reassignment to a GS-8 TST position. Further, S3 averred that she did not believe Complainant was ready to meet the challenges of a GS-11 CA position because he was previously unable to successfully perform as a GS-9 BA, which involved less complex and less challenging work than a GS-11 CA, and she had not observed or received feedback from his management team that he was taking on additional responsibilities as a GS-8 TST.
Third, S4 explained how she reached the selection decision. Specifically, S4 averred that she rated the applicants on a point system based on information contained in their applications (having relevant job experience and receiving various awards) and based on whether their section manager highly recommended them. In addition, S4 averred that she relied on the judgment of the section managers because they worked closely with module managers and module employees, and were in the best position to know the potential of employees in their section. Moreover, S4 averred that all of the selectees scored 25-30 points and were highly recommended by their section managers, whereas Complainant scored 10 points and was not highly recommended by S3.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, national origin, and reprisal discrimination. On appeal, among other things, Complainant contends that the actions of S2 and S3 affected the score he received from S4. Regarding S2, Complainant argues that her "acrimonious actions" in the module resulted in many complaints being filed against her, she discriminated against many employees in the module, and she assigned low scores to certain employees in the module "under [S3]'s watch." Regarding S3, Complainant argues that she discriminated against him in 2006 when he was a GS-9 BA and continued to discriminate against him in the instant non-selection. Specifically, Complainant asserts that S3 gave him unwarranted errors during the review process and that her actions led to his reassignment as a GS-8 TST. In addition, Complainant asserts that his 2006 performance in the GS-9 BA position should not affect his 2012 selection for a GS-11 CA position, especially given his educational background (numerous master's degrees).
Upon review of the record, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, national origin, or reprisal discrimination. The record does not contain any documentary evidence, or corroborating testimonial evidence, to support Complainant's assertions on appeal. Although Complainant essentially asserts that S2's recommendations and ratings during the selection process were inaccurate, the performance appraisals for the 2011 appraisal period reflect that his performance was not as strong as C1's performance.4 We note that there has been no previous finding that Complainant's 2011 performance appraisal was discriminatory. Although Complainant asserts that S3 discriminated against him in 2006 in connection with the events surrounding his reassignment to the GS-8 TST position, we emphasize that S3's actions from 2006 were not part of the instant complaint and there has been no previous finding that they were discriminatory. Although Complainant asserts that S3 should not have considered his 2006 performance in the GS-9 BA position, we find it reasonable for S3 to do so because the vacancy announcement required specialized experience at the GS-9 level and the only such experience Complainant had was his GS-9 BA experience. Although Complainant asserts that he has numerous master's degrees, we note that the position did not require a master's degree.
Based on the above, we conclude that Complainant did not establish his claim of disparate treatment on the bases of race, national origin, or reprisal for prior protected EEO activity.
CONCLUSION
Complainant did not establish that the Agency subjected him to disparate treatment on the bases of race, national origin, or reprisal for prior protected EEO activity in connection with an April 2012, non-selection for a GS-11 CA position. Therefore, 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 finding no discrimination.
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:
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 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
__10/3/16________________
Date
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.
2 S3 averred that she "recommended against" Complainant's selection. However, the documentary evidence in the record reflects that S3 recommended Complainant.
3 S4 awarded 5 points for a performance award in 2011, 5 points for a performance award in 2010, 4 points for an honors award, 6 points for a Deputy Commissioner award, and 8 points for a Regional Commissioner award.
4 S2 completed the performance appraisals. On a scale of 1.0-5.0 (lowest to highest), C1 received a 4.0 element average rating and Complainant received a 3.0 element average rating.
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