0120112549
11-07-2012
Carol Ashley-Siguenza, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Carol Ashley-Siguenza,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112549
Agency No. HQ-10-0215-SSA
DECISION
On April 19, 2011, Complainant filed an appeal from the Agency's March 21, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist, GS-12, for the Systems Compliance Staff in the Agency's facility located in Woodlawn, Maryland. During the relevant time, Complainant's first-level supervisor was S1, Supervisor in the Systems Compliance Staff. Complainant's second-level supervisor was S2, the Compliance Division Director. Complainant's third-level supervisor was S3, the Director of the Office of Strategic Services (OSS) from December 2008 through October 2009. The record reveals that Supervisor 4 served as the Deputy Director for OSS from December 2008 through October 2009 and then became the Director of OSS in October 2009.
The Agency posted a job announcement for a Social Insurance Specialist, GS-13, from July 27, 2009, through August 14, 2009, under Vacancy Announcement Number (VAN) SH-273852. The non-competitive referral list for the vacancy identified six candidates for the position and the merit promotion certificate of eligibles listed 20 candidates for the position. S2 conducted interviews of the candidates along with two other panel members, Panel Member X and Panel Member Y, who were supervisors from the Agreements staff where the vacant position was located. All interviewees were asked the same four questions and had the opportunity to present their answers to a research question which they had been given in advance of the interview. The three panel members assigned numerical ratings to the candidates and the top three candidates were determined. S2, the Recommending Official, identified Selectee 1, as the best qualified candidate in a memorandum to the Director of the Office of Strategic Services (OSS), the Selecting Official. On September 7, 2009, S3 selected Selectee 1 for the GS-13 Social Insurance Specialist position from the non-competitive referral list.
Subsequently, following S3's departure as Director of OSS there was an opportunity to make two more selections for the GS-13 Social Insurance Specialist position. S4 was informed by the Executive Officer for OSS that the vacancy did not have to be reposted and that the selections could be made from the Best Qualified List from VAN SH-273852 in accordance with the Merit Promotion Pan. Thus, on November 5, 2009, S4 chose Selectee 2 for the position. On November 9, 2009, S4 chose Selectee 3 for the GS-13 Social Insurance Specialist position.
Complainant filed an EEO complaint dated April 6, 2010, alleging that the Agency discriminated against her on the bases of age (59) and in reprisal for prior protected EEO activity when:
1. Complainant was subjected to harassment (non-sexual) when she learned that she was not selected for the GS-0105-13 Social Insurance Specialist position that was advertised under vacancy announcement number (VAN) SH-273852.
2. On October 22, 2009, Complainant's supervisor, S1, notified her that her position description had been changed to an Information Technology Specialist (ITS) position, a position for which Complainant had not received any training.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In its final decision, the Agency dismissed issue (2), pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO Counselor more than 45 days after she was informed on October 22, 2009, by S1, that her position description had been changed to an Information Technology (IT) Specialist to reflect her April 6, 2009, move to the Systems Security and Compliance Staff. Alternatively, the Agency found that issue (2), should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that with regard to issue (2), Complainant failed to show that a direct harm affected a term, condition, or privilege of her employment.
With regard to issue (1), the Agency assumed that Complainant established a prima facie case of discrimination based on age and reprisal. The Agency then articulated legitimate, non-discriminatory reasons for its actions. The Agency noted that following the interview by the panel members, S2 ranked the candidates into three categories: "highly recommended," "recommended," and "not recommended." The Agency noted that Selectee 1 was ranked first on the "highly recommended" list. The Agency noted that Selectee 1 received a score of 5 out of 5 (with 5 being the highest possible score) from each panel member on the scored interview. S2 stated that Selectee 1 presented herself as very knowledgeable during the interview and excelled on her presentation of the research question. Specifically S2 commended Selectee 1's knowledge of regulations, law, and Agency policies. S2 also noted Selectee 1's adeptness at managing projects that involved intercomponent activities, such as her heavy involvement in the IRD process, which he noted has demands very similar to those required in the Agreements arena, and her lead on numerous projects for her organization, some at the Associate Commission level. The Agency noted that S2 also stated that Selectee 1 had a well-written application, provided a thought-provoking perspective on the written questions, and supplied thoughtful and lucid responses to the oral questions. The Agency noted that S3, the Selecting Official, stated he relied on the recommendation of S2 in making the selection.
The Agency noted that S4 was the Selecting Official for the second and third selection. S4 stated that she relied upon the recommendation of S2 in making the selections. The Agency noted that Selectee 2 was ranked second on the "highly recommended" list supplied by S2. Selectee 2 received scores of four or five on each scored interview item. S2 stated he recommended Selectee 2 due to her work experience which provided her knowledge of federal, state, and local programs and regulations and due to her exceptional interview. S2 stated that Selectee 2's preparation for the interview manifested good analytical skill and she demonstrated superior oral and written communications during the interview.
The Agency noted that Selectee 3 was ranked third on the "recommended" list (sixth overall) while Complainant was ranked sixth on the "recommended" list (ninth overall). S2 stated that he recommended Selectee 3 for the position because she was already on the Agreements Team, performed well, and had sufficient time in grade to be promoted from the GS-12 level.
The Agency noted that Complainant claimed that she was the best-qualified for the GS-13 Social Insurance Specialist position because she had done the job for three and a half years and because Selectee 1 and Selectee 2 did not work in the Agreements area. However, the Agency argued that Complainant's greater tenure with the Agency, without more, does not, in and of itself, render her more qualified than the Selectees. The Agency stated that Complainant did not show that her work on the Agreements Team set her apart as the best qualified candidate. The Agency noted that Complainant was ranked below all the selectees based on her job application, performance during the interview, and the supporting documentation for the interview. The Agency noted that Panel Member X stated that Complainant did not give answers related to the job and her answers were not as focused as Selectee 1. Panel Member X stated that Complainant did not relate her answers to the work that they did in the Agreements Area. The Agency noted that Panel member Y stated that she had supervised Complainant for six months and that during that time Complainant had issues with timely completion of work and difficulty following instructions. The Agency noted that Panel Member Y stated that on at least one occasion, Complainant did not answer the question asked during the interview. The Agency noted that Panel Member X and Panel Member Y both stated they were not aware of Complainant's prior EEO activity. The Agency noted that Panel Member X stated she was not aware of Complainant's age. The Agency noted that S2, Panel Member X, and Panel Member Y all stated that neither Complainant's age nor her prior EEO activity influenced their ranking of Complainant. The Agency concluded Complainant failed to show that her non-selection was motivated by discrimination.
The Agency noted that Complainant also claimed that she was subjected to harassment in that the last six people selected for jobs in the Agreements Team have all been under the age of 50 and five of them did not work on the Agreements Team or the Division. The Agency noted that Complainant has not shown which positions she is referring to, whether she applied for the positions and was determined to be qualified for them, and whether or not the same selecting officials were responsible for making the selections.
The Agency also noted that Complainant claimed that she was harassed by S3 when he denied her administrative leave in March 2009. The Agency stated that while Complainant was on sick leave in February 2009, all of the Black females involved in a class action were granted administrative leave for preparation and participation in depositions and testimony. The Agency stated that Complainant was on sick leave at the time, which had been granted by S3. The Agency stated that Complainant has not shown that the decision not to grant her administrative leave when she was already on sick leave was harassment based on her age or in reprisal for prior EEO activity.
Additionally, the Agency noted that Complainant claimed that S3 told her that she would never be promoted and was rude and hostile to her when she met with him in December 2008, and on January 5, 2009. The Agency also noted that Complainant stated that S3 used statements or comments made during mediation against her. In response, the Agency stated that these claims are too vague to support a claim of harassment. The Agency also stated that Complainant has not shown that the alleged statement by S3 that she would never be promoted was related to her age or in reprisal for her protected EEO activity. Further, the Agency noted Complainant has not identified any statements or comments made during mediation that were used against her or why she believes this was age or reprisal based harassment.
On appeal, Complainant states her appeal involves the selection of Selectee 2 and Selectee 3 only. Complainant states that Selectee 3 had been a GS-12 information technology specialist in Office of Electronic Information Exchange for 10 months and was still in training when she was promoted. Complainant states that Selectee 2 who was then a GS-12 Social Insurance Specialist in the Office of Public Inquiries was highly recommended by S2 but Selectee 2 had less than a year and a half in grade. Complainant noted that Selectee 3 had 19 years as an Information Technology Specialist not a Social Insurance Specialist. In contrast, Complainant stated she has 28 years as a Social Insurance Specialist of which seven and a half were spent in a GS-13 role. Moreover, Complainant noted that the November 2009 non-selections followed her protected EEO activity in August 2009 by three months. Complainant argues that this is ample evidence from which it can be reasonably inferred that retaliatory animus was a motivating factor in denying Complainant a promotion to the GS-13 Social Insurance Specialist position.
In response to Complainant's appeal, the Agency argues its final decision correctly found the Agency articulated legitimate, non-discriminatory reasons for its selection decisions, which Complainant failed to rebut or show were a pretext for discrimination. The Agency also reiterates its position that it properly dismissed the claim based on the change in position description. The Agency states that beyond her bare and unsupported allegations Complainant has no probative evidence that management's actions were pretextual. The Agency also argues that Complainant failed to establish that she was subjected to harassment based on her age or in reprisal for protected EEO activity.
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. (November 9, 1999) (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").
At the outset, we note that Complainant does not challenge the Agency's dismissal of issue (2). The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Accordingly, we will not address the dismissal of issue (2) in this decision. Additionally, we note that Complainant states her appeal concerns only the selection of Selectee 2 and Selectee 3. Thus, we will not address Complainant's non-selection on September 7, 2009, in which Selectee 1 was selected.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for the GS-13 Social Insurance Specialist position, that she did not rank as high as Selectee 2 and Selectee 3 based on her application and her performance during the interview. Complainant failed to show that the Agency's articulated reasons were a pretext for prohibited discrimination. Moreover, Complainant failed to show that the Agency's actions constituted harassment based on her age or in reprisal for prior protected EEO activity.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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
November 7, 2012
__________________
Date
2
01-2011-2549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112549