0120064448
01-15-2009
Yvonne Bowdre, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Yvonne Bowdre,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200644481
Agency No. 040368SSA
Hearing No. 170-2005-00362X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 27, 2006 final order 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the bases
of race (Black), sex (female), age (53), and reprisal (prior protected
EEO activity) when she was not given either a Recognition of Contribution
(ROC) Award or a Quality Step Increase (QSI) on May 5, 2004.
Following a hearing, an EEOC Administrative Judge (AJ) concluded that
complainant failed to present sufficient evidence in support of her
claims of discrimination as set forth below.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Complainant worked at the Saddle Brook Teleservice Center (TSC) in which
the management team consisted of one manager, two supervisors and a
management analyst who each oversaw a unit of teleservice representatives
as well as a technical assistant. The relevant employment decisions
were made by the two TSC supervisors, S1 and S2 and management support
specialist (MSS).
The management team decided on recipients of the QSIs and ROCs in April
2004. They were given a specific amount of money that had to be split
among the award recipients. Sixteen employees received nominations.
A GS-9 technical assistant (C1) submitted seven nominations. The other
nominations were either anonymous or submitted by the nominees themselves.
The supervisors had the authority to nominate individuals who had not
otherwise been nominated, in addition to considering the nominations
submitted by employees. S1 and S2 assessed the employees in their own
units as to whom they felt were deserving of awards. They were also
somewhat aware of the employees in the other units. As she was not a
supervisor, MSS's participation was somewhat different. She provided
input on the Tier 2 service observations she had conducted. She was also
an Officer in Charge (OIC), supervisor of the week every third week,
and she conducted trainings, in addition to acting as supervisor in S1
or S2's absence. This provided her some familiarity with the employees'
performance. The three managers discussed each employee in the office
and evaluated their performance on the telephone, their timeliness, and
their extension of effort as well as how much assistance they required.
They considered qualities of the nominees such as courtesy, respect,
accuracy, efficiency, tactfulness and professionalism and whether
the nominees were able to resolve both routine and complex problems
independently. In addition to looking for employees with outstanding work
performance, they considered those who went above and beyond providing
outstanding customer service, such as serving as primary mentor or
conducting training for staff or trainees. A consensus was reached as
to which employees would receive QSIs and ROCs.
Both QSIs were given to employees nominated by C1. Three employees
nominated by C1 did not receive ROC awards. Complainant nominated
herself for an award on the basis of providing outstanding customer
service. The management group sent the list of award winners to the
acting TSC manager (M1). The TSC had 39 employees at the relevant time.
Eleven received ROCs and two received QSIs in May 2004. Complainant did
not receive either a QSI or a ROC award. However, later in May, 2004
she received a Commendable Act or Service Award (CASA) which was one of
17 awarded that year.
The AJ concluded that complainant failed to present a prima facie case
of age, race or sex discrimination. Specifically, the AJ noted that
complainant did not demonstrate that her work performance was at a similar
level or that she made similar contributions as those individuals selected
for awards. The AJ also concluded that complainant failed to present
a prima facie case of reprisal. The AJ noted that complainant's most
recent prior EEO activity ended in August 2003. However, the AJ noted
that complainant presented no additional evidence of a causal connection
between her prior EEO activity and the denial of the QSI or ROC awards
in May 2004.
Assuming the record supports a prima facie case of discrimination and
retaliation, the AJ concluded that complainant failed to present evidence
in support of a finding that management's legitimate, non-discriminatory
explanation for its employment decision was pretexual or motivated
by discriminatory or retaliatory animus. Specifically, the AJ noted
that the managers explained the various factors that they considered
for an employee to merit an award. According to management officials,
a competitive employee must produce a consistently superior product,
perform high quality work, be articulate, handle calls in a poised,
professional and courteous manner, be civil and cooperative, be helpful
and provide accurate information, resolve callers' problems, handle
complex and routine problems independently and consistently handle their
inputs timely. In addition to providing "world class customer service,"
management considered whether an employee volunteered to perform extra
duties such as conducting training classes for staff or new trainees
or to mentor new employees. The AJ noted that S1 and S2 described
the outstanding performance of each award winner; explaining each
employee's particular strengths and contributions during the 2003 year.
The QSI winners were C2 and C3. According to the record, C2 handled
complex problems and went the extra step to ensure a satisfied caller.
He brought problems or observations from the records to the attention
of the technical assistant for possible training of the teleservice
representatives. Moreover, C2 was very adept at resolving complex issues,
did an excellent job and sent messages to another component, all on a
routine basis. He was very good at resolving complex issues and his
routine work was very good as well. He demonstrated initiative, seeking
to learn more, including about matters that were not directly applicable
to his job. For example, C2 learned to perform interactive computations.
He performed the research himself, pulled up the information and took
the books home to study.
According to the record, C3 possessed an excellent attitude. Her work
was very good and she performed independently. She also performed
a variety of inputs and did superior work on a consistent basis.
Moreover, the record shows that C3 always volunteered to give training
and perform extra assignments. She volunteered to mentor new employees
and conduct training for new employees. The managers also described the
outstanding performance and contributions of each of the ROC awardees.
None of them felt that complainant deserved either a QSI or ROC award
because her performance was average and she did not serve as either a
primary mentor or as a trainer.2
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 15, 2009
Date
1 Complainant's appeal has been re-designated with the above-referenced
appeal number.
2 Complainant did not present sufficient evidence to rebut the testimony
provided by the agency.
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0120064448
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064448