Shanel G.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJun 5, 20180120161571 (E.E.O.C. Jun. 5, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanel G.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161571 Hearing No. 560-2015-00271X Agency No. KC-14-0742-SSA DECISION Complainant appeals to the Commission from the Agency’s final decision dated March 21, 2016, finding no discrimination concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Lead Contact Representative/Technical Assistant, GS-9, with the Kansas City Teleservice Center (TSC), Kansas City, Missouri. On September 11, 2014, Complainant filed her complaint alleging discrimination based on age (over 40) and in reprisal for prior EEO activity when on July 2, 2014, she was not selected for the Supervisory Contact Representative/TSC Supervisor position, GS-11/12, advertised under Vacancy Announcement Number SK-107638114-160. 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. 0120161571 2 After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency thus issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. ANALYSIS AND FINDINGS 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), Chap. 9 § VI.A. (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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incident. At the relevant time, Complainant was employed by the Agency as a Lead Contact Representative/Technical Assistant with the Kansas City TSC. Complainant claimed that she applied for the TSC Supervisor position at issue in May 2014, but was not selected. The Selecting Official (SO) indicated that for the position at issue, she was looking for candidates with experience working in a telephone call center as well as management experience, including experience training and mentoring employees with employee and labor relations issues. The SO stated that she received the list of the best qualified candidates (18, including Complainant), from Human Resources. The SO stated that she and a TSC Manager (MA) assigned points to each applicant based on their job experience and monetary performance awards received for the years 2011 – 2013. The SO stated that she then convened an interview panel, consisting of the MA and two other managers, who interviewed the candidates, including Complainant, asking the same questions and gave points for their responses to the questions. The SO stated that she then calculated the applicants’ final scores, which consisted of their job experience, monetary performance awards, manager referral, and interview. The SO selected four applicants who had the highest total scores of 81, 71, 70, and 70. Complainant was not selected because her total score was 56 which ranked her 13th out of the 18 applicants. Complainant claimed that she had superior qualifications over the selectees because she had been at the TSC for 14 years and she had over 20 years of experience including her outside work with the county as an Entitlement Assistant from 1998 – 2004, which required her to know all of the Agency’s policies. The SO acknowledged that Complainant had many years of experience at TSC and she, thus, was given the maximum three points for that experience. The record indicates that for applicant’s manager’s recommendation score, Complainant received 19 points 0120161571 3 and the seletees received 33, 30, 29, and 22 points (33 was the highest and 14 was the lowest of the best qualified candidates). For the interview score, Complainant received 28 points and the seletees received 38, 35, 33, and 41 points (41 was the highest and 11 was the lowest of the best qualified candidates). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120161571 4 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 June 5, 2018 Date Copy with citationCopy as parenthetical citation