Wilda M.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0520180096 (E.E.O.C. Apr. 25, 2018)

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

Wilda M.,1
Complainant,

v.

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

Request No. 0520180096

Appeal No. 0120151852

Hearing No. 560-2014-00067X

Agency Nos. PHI-12-0623-SSA,
PHI-11-0043-SSA,
PHI-10-0644-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120151852 (October 11, 2017).
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant filed three EEO complaints which were consolidated on December 21, 2012.
Complainant claimed that she was discriminated against on the bases of her sex (female) and in
reprisal for her prior EEO activity under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., when:

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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1. On May 6, 2010, Complainant learned she had not been selected for the position of
Senior Attorney Advisor, GS-0905-13.

2. On or about October 4, 2010, Complainant’s Supervisor issued her a counseling
memorandum concerning the inappropriate release of personally identifiable
information.

3. In July 2011, Complainant learned she had not been selected for the position of
Administrative Law Judge.

4. Complainant was subjected to a hostile work environment.

5. On February 8, 2013, Complainant’s Supervisor yelled at Complainant and forced her
to remain in the Supervisor’s office.

Over Complainant’s objections, the EEOC Administrative Judge (AJ) granted the Agency’s
Motion for a Decision Without a Hearing and issued a decision without a hearing finding that no
discrimination occurred with regard to each claim in the complaint. With regard to
Complainant’s nonselection at issue in claim (1), the AJ observed that the Agency stated that
Complainant received poor recommendations from her managers. As for claim (2), the AJ noted
that the Agency stated that Complainant received the counseling memorandum for
inappropriately using her own email account to transmit private Agency information. The AJ
found that Complainant failed to establish that the Agency’s articulated reasons as to claims (1-
2) were pretextual. In terms of claim (3), the AJ found that Complainant failed to establish a
prima facie case since none of the candidates were selected for the position, as the position was
ultimately filled by transferring an existing Administrative Law Judge from another office. With
respect to claims 4-5, the AJ found that the incidents were insufficiently severe or pervasive to
constitute harassment.

In its final decision, the Agency adopted the AJ’s decision finding that no discrimination
occurred.

On appeal, the Commission affirmed the Agency’s final decision. The Commission found as to
claim (1) that Complainant’s arguments were unpersuasive concerning her qualifications being
plainly superior to those of the selectee or that there were irregularities in the selection process.
As to the counseling memorandum at issue in claim (2), Complainant argued that the selectee for
the position in claim (1) had left a computer filled with private information exposed in a public
place for a period of at least three days. The Commission rejected this argument as we found
that the selectee was not similarly situated to Complainant given that the selectee had incurred a
medical emergency while the computer was in his possession and the laptop was secured by two
passwords. The Commission observed that Complainant stated she was not appealing the AJ’s
finding as to her nonselection for the Administrative Law Judge position. With regard to
Complainant’s hostile work environment claim, the Commission found that a prima facie case of
hostile work environment was precluded based on our finding that Complainant failed to
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establish that any of the actions taken by the Agency were motivated by discriminatory animus
or retaliatory motive.

In her request for reconsideration, Complainant argues that she had superior qualifications for the
Senior Attorney Advisor position in comparison with the selectee. Complainant stated that
claims processing experience was cited as a reason for choosing the selectee, but that claims
processing experience was not mentioned as a factor in either the position description or vacancy
announcement, and that the great majority of the Senior Attorney Advisors under the selecting
official lacked claims processing experience. Complainant further argues that the Chief
Administrative Law Judge acknowledged that in 2009 and 2010, she worked far more hours than
the selectee. Complainant maintains that the Chief Administrative Law Judge also admitted that
he never read the vacancy announcement or its requirements before recommending the male
candidate as more qualified. Complainant argues that the only contemporaneous handwritten
documentation comparing her performance with that of the selectee was destroyed by her
Supervisor despite a litigation hold being placed on documents relevant to the claims asserted
and anticipated discovery.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate decision involved a clearly erroneous interpretation of material fact or law, or
will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not done so here. Complainant has not shown that her qualifications for the
Senior Attorney Advisor position were so observably superior to those of the selectee as to
warrant a finding of pretext. As for the alleged destroyed evidence, Complainant’s Supervisor
stated that the records were not as described by Complainant, but rather a planner/calendar in
which she kept track of meetings and employees’ daily schedules. The Supervisor stated that she
destroyed them at the end of each year consistent with her interpretation of Agency policy
guidance on the use of memory joggers, which she believed was not encompassed in the
litigation hold that she received.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120151852 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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 25, 2018
Date