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.