Alma L. Walker, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 5, 1999
01981125 (E.E.O.C. Feb. 5, 1999)

01981125

02-05-1999

Alma L. Walker, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Alma L. Walker, )

Appellant, )

)

v. ) Appeal No. 01981125

) Agency No. 95-0461-SSA

Kenneth S. Apfel, ) Hearing No. 340-96-3915X

Commissioner, )

Social Security Administration, )

Agency. )

________________________________)

DECISION

On November 29, 1997, Alma L. Walker (appellant) timely appealed the

final decision of the Social Security Administration (agency), dated

October 24, 1997, which concluded she had not been discriminated against

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act

(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In her complaint,

appellant had alleged that agency officials discriminated against her on

the bases of her race/color (American Indian, considered by others to be

Black), sex (female) and age (55), when she was not given the opportunity

to apply for a Claims Representative position in the Spring of 1995.

This appeal is accepted in accordance with the provisions of EEOC Order

No. 960.001.

At the time the events at issue occurred, appellant had been employed by

the agency in its Inglewood, California office as a Service Representative

for eight years and had received many awards for her work. Testimony

further established that appellant had a limited ability to speak Spanish,

and had to have the assistance of others when communicating with claimants

who could only speak in Spanish.

In early 1995, the Inglewood Operations Manager (Caucasian female)

received a vacancy announcement for the position of Claims Representative

in the Inglewood office, advertised through an agency program known as

"Advanced Careers with America" (ACWA). The vacancy announcement set

forth two requirements for the position:

[T]he ability to read, write and speak Spanish fluently; and the

successful completion of a full four-year course of study leading to

a bachelor's degree or possession of a bachelor's degree in Business

Administration or similar course to business; or Completion of three

years of interviewing and evaluating; conducting investigations; resolving

discrepancies; and recognizing solutions; planning and organizing work;

and communicating effectively orally and in writing; or Completion of

a combination of the education and experience as described in "A" and

"B" above. [Boldface in the original.]

Rather than posting this vacancy announcement, the Operations Manager,

after consultation with the District Manager (Caucasian male), personally

gave it to only one Service Representative (Caucasian female; hereinafter

referred to as the "selectee"), who had worked for the agency since

July 1994. The vacancy announcement was not given to appellant or to

any other possible candidate. At the time, all ten of the other Service

Representatives in the Inglewood office were non-Caucasian females.

The selectee was the only employee from the Inglewood office to submit

an application for the Claims Representative position, and was selected

for the position by the District Manager. The two agency officials

justified the preference given the selectee by explaining that, despite

the alternative experience provision in vacancy announcement, they chose

to only consider Service Representatives with four-year college degrees

for the ACWA position.

The evidence established that at the time of her selection, the selectee

had a bachelor's degree in Biology, with no courses in Business

Administration. She also had only eight months of interviewing

experience, far short of the three years called for in the vacancy

announcement. Testimony also established that the District Manager

was aware that the selectee was not fluent in Spanish at the time of

her selection.

In June 1995, appellant filed a formal EEO complaint with the agency,

alleging that the agency had discriminated against her as referenced

above. The agency accepted the complaint and conducted investigations.

At the conclusion of the investigations, appellant requested an

administrative hearing before an Equal Employment Opportunity Commission

(EEOC) administrative judge (AJ). Appellant's complaint was consolidated

for a single hearing with the complaints of nine other non-Caucasian

female Service Representatives from the Inglewood office who were raising

the same claim about this selection.<1>

On August 14, 1997, following a two-day hearing, the AJ issued a

decision finding appellant had failed to establish even a prima facie

case of discrimination because she testified that she would not have been

interested in applying for the Claims Representative position even if

she had been aware of the vacancy announcement. On October 24, 1997, the

agency issued its final decision, adopting the AJ's recommended decision,

and entering a finding of no race, color, sex or age discrimination.

It is from this decision that appellant now appeals.

After a careful review of the record in its entirety, the Commission finds

that the AJ's recommended decision sets forth the relevant facts and

properly analyzes the case using the appropriate regulations, policies

and laws. Based on the evidence of record, the Commission discerns no

basis to disturb the AJ's finding of no discrimination. Nothing proffered

by appellant on appeal differs significantly from the arguments raised

before, and given full consideration by, the AJ. Accordingly, it is

the decision of the Equal Employment Opportunity Commission to AFFIRM

the agency's final decision which adopted the AJ's finding of no race,

color, sex or age discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from

the date that you receive this decision. To ensure that your civil

action is considered timely, you are advised to file it WITHIN THIRTY

(30) CALENDAR DAYS from the date that you receive this decision or

to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the

administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

February 5, 1999

__________________ _______________________________

DATE Ronnie Blumenthal, Director

1 All ten complainants have also filed appeals with this Commission.

See, EEOC Appeals Nos. 01981122 through 01981131.