Verna G.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120172538 (E.E.O.C. Nov. 15, 2018)

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

Verna G.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120172538

Agency No. ATL160878SSA

DECISION

On July 10, 2017, 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
June 12, 2017, final decision concerning her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Service
Representative, GS-8 at the Agency’s District Office in Charlotte, North Carolina.

On October 11, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and color (light skinned)
when:

1. on August 19, 2016, she did not receive an award for work performed on a special
project; and

2. on August 19, 2016, she was not selected for the position of Social Insurance Specialist
pursuant to Job Announcement Number SG-1692058-16-ALE.2

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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Award

The investigation shows that Complainant performed work on two special projects in 2016.
According to the record, Complainant assisted in clearing the Agency’s “Epad” review backlog
and participated in the Agency’s “Worktrack Blitz Day” in May of 2016. The record further
indicates that Complainant also performed duties as backup timekeeper and cashier. In response
to Complainant’s claims, Complainant’s supervisor (Caucasian) explained that he considered
Complainant’s work on the projects to be routine and not the type of exemplary contribution
which would merit an Agency Exemplary Contribution or Service Award (ECSA).
Complainant’s supervisor also indicated that Complainant had already been recognized for her
work as backup timekeeper and cashier when she received a Recognition of Contribution (ROC)
award related to her performance rating. Complainant asserts another Service Representative
(African American, dark-skinned) received an ECSA for her work on the Blitz Day.
Management witnesses stated that no one who assisted in either special project received an
ECSA simply for participation, which was the role Complainant played on the projects.

Non-selection

With regard to Complainant’s not being selected for the specialist positon, the investigation
indicated there were 31 candidates for the position, including Complainant. In addition to
reviewing the submissions from the candidates, the selecting official (African American,
medium brown) requested supervisory recommendations for each candidate. According to the
record, Complainant’s supervisor was also the supervisor of the eventual selectee (Hispanic).
The supervisor “highly recommended” the selectee and “recommended” Complainant for the
position. The supervisor stated that he recommended the selectee over Complainant to the
selecting official based on her “experience, quality of work, and impressive interpersonal skills.”
Complainant’s supervisor stated that he had some reservations about Complainant because he
had received informal verbal complaints from some claimants that Complainant had a negative
attitude in her interactions with them. He said that that while the severity and frequency of
complaints about Complainant did not warrant discipline, they demonstrate an area of weakness
with respect to Complainant’s interpersonal skills. The selecting official accepted the
supervisor’s superior recommendation of the selectee and determined that she was the better
candidate to fill the position.

Following its investigation of claims 1 and 2, 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). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

2 The complaint originally contained two other claims concerning Complainant’s December
2015 performance appraisal and a claim of harassment. However, the Agency dismissed these
claims for untimely EEO counselor contact. As Complainant has not challenged the dismissal on
appeal, we will not address these additional claims in this decision.
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The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

This appeal followed.

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, at Chapter 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”).

Here, we agree with the Agency's finding of no discrimination. To prevail in a disparate
treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case
by demonstrating that he or she 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, 411 U.S. at 802 n. 13. 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). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by
the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Even assuming that Complainant established a prima facie case of discrimination based on race
and color, we find that the responsible Agency officials articulated legitimate, nondiscriminatory
reasons, as detailed above for the decisions made. Specifically, Complainant failed to
demonstrate that her contributions to the Agency’s special projects rose to an exemplary level to
warrant an ECSA award. Moreover, the Agency indicates that the selecting official found that
the selectee’s excellent interpersonal skills along with the recommendation from her supervisor,
made her the best candidate for the position at issue. Complainant failed to show that those
reasons were pretext for discrimination on any alleged basis. There is simply no evidence that
the supervisor or the selecting official were motivated by discriminatory animus toward
Complainant’s protected classes.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s decision finding no discrimination is AFFIRMED for
the reasons set forth herein.

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.
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).
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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

November 15, 2018
Date