0120121115
05-22-2012
Ann L. Scott, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Ann L. Scott,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121115
Hearing No. 532-2010-00167X
Agency No. CHI-10-0172-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 22, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative, GS-105-11, at the Agency's Title XVI Unit, Columbus West Field Office, Area 6, Chicago Region, Office of Operations, facility in Columbus, Ohio.
On February 19, 2010, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (Caucasian), disability (double knee replacement), and age (over 40) when:
1. on November 13, 2009, she was not selected for the position of Social Insurance Specialist, GS-105-12, which was advertised under Vacancy Announcement No. SI-275665-09-IVOL-HE-394; and
2. on November 18, 2009, she was not afforded the opportunity to apply for the 120- day assignment as a Generalist Technical Expert (TE) in Springfield, Ohio.
Following a hearing held on July 14 and 15, 2011, the AJ issued a decision on September 16, 2011, finding no discrimination. The AJ found that Complainant did not establish a prima facie case of disability discrimination.1 The AJ found, however, that Complainant established a prima facie case of race and age discrimination. Specifically, the AJ found that Complainant had shown that she was of the protected classes, and had applied, was qualified for, but was not selected for the position of Social Insurance Specialist or detailed to the position of Generalist TE. The AJ nonetheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the AJ noted that Complainant asserted that she was more qualified, based on her tenure with the Agency. However, the AJ found Complainant did not show that her qualifications were superior to those of the selectee. The AJ noted that the selecting official (SO) stated that he initiated the posting for the Social Insurance Specialist vacancy in northern Ohio when one of the "Program to Achieve Self Support (PASS)" Specialists in northern Ohio left. Management thereupon decided to create such a position in the southern Ohio area instead of having two positions in the northern Ohio area. The AJ noted that nineteen applicants, including Complainant, applied for the subject position and were referred to SO for consideration.
The AJ noted that SO only seriously considered applicants who had been highly recommended by their managers, because SO believed those applicants had the highest possibility for success at a higher level. The AJ noted further that upon receipt of the best qualified list, SO asked each applicant's manager or direct supervisor to "not recommend," "recommend with caution," "well recommend" or "very strongly/highly recommend" their respective employees who had applied for the subject position. The AJ noted that out of the nineteen applicants, two applicants received the highest recommendations from their supervisors. Complainant was not one of the two applicants. The AJ noted that these two applicants were the only applicants SO seriously considered further for the subject position.
The AJ noted that SO stated that he did not conduct interviews and instead, he asked the applicants' managers in making his determination. Specifically, SO testified "I would look, largely, at what [applicants'] supervisor or their manager had to say about their overall performance because they are knowledgeable about what the person's brought to the table and what they've contributed." SO further stated that he knows his managers "pretty well and I know how they tend to rate and how they tend to assess people and so I do try and take that into account, then I can come up with what they're telling me about individuals."
SO testified that he chose the selectee for the subject position because he felt that the selectee was best qualified. SO stated that the selectee was one of the two applicants who were highly recommended by their supervisors. SO further stated that when he contacted the selectee's supervisor (SS), SS was "very effusive about [selectee] whole approach to work, how she seemed to even raise the level of those around her, positive attitude, she . . . showed initiative, so that's a self-starter aspect. She would meet . . . work where it was out there to be done without having to be directed. Basically, as I went over the questionnaire with him, I recall him giving her the highest possible marks in virtually every aspect."
With regard to Complainant's application, SO testified that when he contacted Complainant's second-level supervisor (S2), she did not recommend Complainant for the subject position. As a result, SO did not seriously consider Complainant for the subject position.
The AJ noted in her testimony, S2 stated that when SO contacted her for a recommendation for the subject position, she recommended Complainant but had several concerns about her performance. Specifically, S2 stated that she told SO that Complainant "had strong skills and training because she had been a trainer in my office for one class and she did a good job there, but that I had some concerns about some of her timeliness as it pertains to workloads." S2 stated that during the relevant time, several employees and the Operation Supervisor informed her that Complainant was not returning telephone inquiries in a timely manner. S2 further stated that several of Complainant's cases were returned from the Office of Quality Assurance because "she did not respond to in a timely manner." Moreover, S2 stated that she had concerns with Complainant's interpersonal skills.
Regarding claim 2, the District Manager (DM) was the selecting official for the Generalist TE detail. The AJ noted that DM stated that he was not seeking someone who needed remedial training in the area. Instead, DM sought someone who had full and current knowledge of initial and post-entitlement procedures for both Title II and Title XVI matters and who would be capable of handling difficult and complex cases under both titles. In his testimony, DM stated "the first thing I looked at is, number one, is who had experience, current experience with Title II, Title XVI, initial claims and post-entitlement and all of the systems involved with both programs."
The record reflects that five applicants, including Complainant, applied for the subject detail. The AJ noted that DM chose the selectee because DM determined that he was most qualified. Specifically, the AJ noted that the record reflects that the selectee had been cross-trained to process both Title II and Title XVI cases and at the time of the selection, the selectee had four years of specific related experience processing cases under both titles.
The AJ noted that DM did not select Complainant for the detail because her Title II experience was between fifteen and twenty years old, and that she did not have current knowledge of some of the major components associated with the Title II program. Specifically, the AJ noted that Complainant had not worked as a Title II claims representative since 1987 although she processed several Title VII cases during the relevant period. The AJ also noted that Complainant was not cross-trained in current Title II policy and procedures at the time of the selection.
DM testified that there were many issues in the Title II program "that [have] changed since [Complainant] processed Title II. So to have her mentor a class, to have her provide training to individuals on subject matters that she, herself, was not processing now, would not have been the best decision for the trainees. So, she would be in the process of giving them training on something that she, herself, has not done...so putting her in a position to where she's providing the systems training to them on stuff that she's not doing now . . . wouldn't be the best fit for the assignment at that time."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred finding no discrimination. For instance, Complainant states that the AJ's decision "only considers the testimony of management officials and ignores the testimony of the witness for the Complainant." Complainant argues that in regard to claim 1, there were discrepancies between the testimony of S2 and SO "regarding the recommendation for the PASS position that was not resolved." Complainant further argues that the AJ improperly compared her rating and the selectee's performance rating "because there are two different rating officials and two different offices involved. The ratings are very subjective."
With respect to claim 2, Complainant argues that there were "significant discrepancies between the testimony [of a named union representative] for the Complainant and [DM] that were not resolved." Specifically, Complainant argues that her union representative made DM aware that the selectee was not knowledgeable in the Title II program and "underwent basic, remedial Title II training shortly before the selection."
ANALYSIS AND FINDINGS
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, on appeal, argues that the report of investigation was inadequate. However, the Commission determines that the investigation was properly conducted, and that Complainant provided no persuasive arguments indicating any improprieties in the Agency's findings. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
May 22, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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