Yvonne Bowdre, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120064448 (E.E.O.C. Jan. 15, 2009)

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.

??

??

??

??

2

0120064448

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120064448