Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 12, 2014

0120131098 (E.E.O.C. Mar. 12, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120131098

Hearing No. 420-2010-00490X

Agency No. ATL-10-0360-SSA

DECISION
On January 4, 2013, Complainant filed an appeal from the Agency’s December 4, 2012, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative, GS-11, at the Agency’s Savannah District Office located in Savannah,
Georgia. During the relevant time, the Operations Supervisor (Person A) was Complainant’s
first-level supervisor. The Assistant District Manager (Person B) was her second-level
supervisor. The District Manager (Person C) was her third-level supervisor. According to the
record, Person C became the District Manager at the Savannah District Office in May 2008.
The record reveals that the prior District Manager had promoted Complainant to a Social
Insurance Specialist (Technical Expert) position on a temporary basis in December 2006 and
again in December 2007. In December 2008, Person C gave Complainant another not-to-
exceed one-year temporary promotion as a Technical Expert (TE). In December 2009, Person
C ended Complainant’s temporary promotion as a TE.

The Agency posted Job Announcement SG-308201-10MLF for a permanent GS-12 Social
Insurance Specialist (TE) position located in the Savannah, Georgia District Office from
December 21, 2009, through January 13, 2010. According to the Position Description, a TE
is responsible for developing and adjudicating the most complex cases for the full range of
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Social Security Administration (SSA) programs and serves as a focal point for ensuring high
quality case processing through consultation, and technical mentoring of other employees.

Complainant was among the applicants that applied for the TE position. On January 22, 2010,
the Center for Human Resources issued a Non-Competitive referral list, which included four
names, and a Merit Promotion Certificate of Eligibles, which included fifteen names, including
Complainant. The District Manager was the Selecting Official. The Selecting Official
received the two lists, reviewed the applications from all of the candidates on those lists,
contacted a manager in the management line for each candidate and asked if he or she would
recommend each candidate. Thereafter, the Selecting Official chose the Selectee from the
Non-Competitive referral list.

Complainant filed an EEO complaint dated April 6, 2010, alleging that the Agency
discriminated against her on the basis of race (African-American) when:

1. On February 23, 2010, Complainant was not selected for the position of Social
Insurance Specialist (TE), GS-12, advertised under SG-308201-10MLF.

2. On February 23 - 25, 2010, the District Manager and the Assistant District Manager
doubted that Complainant was out of work due to illness and cautioned her that if she
called in sick again, she would be reprimanded.

3. Complainant was subjected to a hostile work environment when on February 26, 2010,
the Assistant District Manager called Complainant into a meeting where he presented
her with a Proposal to Suspend her for two days due to disrespectful and threatening
behavior toward a co-worker on February 17, 2010. The proposed suspension was
issued by the Operations Supervisor. Because Complainant refused to sign the letter
during the meeting with the Assistant Director, he subsequently placed the letter on
Complainant’s desk. Complainant was “being harassed and treated hostile” because
she did not sign the letter of suspension.

On May 24, 2010, the Agency accepted issue (1) for processing. The Agency dismissed issues
(2) and (3) pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.

At the conclusion of the investigation on the accepted issue, 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). Complainant timely requested a hearing and the AJ held a
hearing on October 26, 2012, and issued a decision on October 26, 2012. In his decision, the
AJ found Complainant failed to establish that she was subjected to discrimination based on her
race.

The Agency subsequently issued a final order on December 4, 2012. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
her to discrimination as alleged.
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On appeal, Complainant claims the AJ had a nonchalant attitude towards her and her witnesses
and did not listen to her side of the case. Complainant also states the AJ was biased in favor of
the Agency.

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.
At the outset we find no evidence that the AJ was biased or acted improperly in conducting the
hearing. In addition, we find the record in the present case was fully developed. We note that
Complainant does not challenge the Agency's dismissal of issues (2) or (3). 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 issues (2) or (3) in this decision.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the agency’s explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy

, EEOC Request No. 05950351 (December 14, 1995).
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The Selecting Official stated that prior to May 2008, there was widespread leave abuse;
employees often completed time sheets inaccurately; units were specialized to the point of
failure if one or more employees were missing unexpectedly; training was voluntary; and
Continuing Disability Review (CDR) cases were backed up over three years. She also noted
that prior to her arrival, the specialization in the units prohibited employees from fulfilling the
full range of their duties as described in the Agency's position descriptions. The Selecting
Official stated after her arrival she began to change work assignments and workflow in the
office.

Prior to the posting of the Vacancy Announcement, the Selectee was in the Disability Insurance
Benefits (DIB) unit, and Complainant was in the Retirement, Survivors, and Health Insurance
(RSHI) unit. The Selecting Official stated that the elimination of specialization occurred in
January 2009. The Selecting Official stated that Complainant was among the employees who
had the most difficulty with the changes she implemented. The Selecting Official stated when
she agreed to extend Complainant’s temporary promotion as a TE in December 2008, she
informed Complainant that she would be making changes to work assignments and work flows
and that she expected Complainant to help her coworkers adjust to changing priorities, to
handle herself with integrity, and to take a proactive part in the office achieving excellence.
However, the Selecting Official stated that Complainant was not proactive and continued to
have difficulty with change. The Selecting Official noted that Complainant would often
comment to her supervisors that workflow changes were “not working” but would not offer
alternatives when asked. Complainant also frequently expressed frustration with, and
disapproval of, coworkers and management by making disparaging remarks about them orally
or in writing.

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. We note the Selecting Official stated that she choose the Selectee based on the fact
that she was very knowledgeable about the disability program; her experience in developing
and adjudicating the most complex Workers’ Compensation, CDR cases, overpayments, and
expedited reinstatement cases; her tremendous interpersonal skills; and the fact that she took on
an informal leadership role without ever having been asked to do so. In addition, the Selecting
Official noted that the Selectee worked at the payment center for over 30 years, which was a
place where the most complex disability cases were processed. The Selecting Official stated
that she wanted someone with a strong knowledge of the disability program because out of the
disability and RSHI programs, the disability was the most complex and at the time there was a
deficiency with regard to the disability program in the office. The Selecting Official also
stated that the Selectee had over 24 years of experience with the Agency, three of which were
in management. The Selecting Official stated that the most complicated RSHI case was not as
complicated as the disability cases. However, the Selecting Official also noted the Selectee had
a good knowledge of RSHI cases. The Selecting Official stated that prior to the Selectee, the
Selectee was doing the TE job without the title based on the fact that she was mentoring
coworkers, took on heavy workloads, cooperated with management, and offered feedback that
was very helpful in sorting out some of the workflow problems that they had.

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The Selecting Official also stated she chose the Selectee for the position because she got along
with peers and superiors, adapted easily to change, volunteered for additional duties, and was
willing to do anything asked of her to meet the needs of the public and her coworkers. The
Selecting Official explained that the Selectee had a positive, professional working relationship
with peers and management, which was necessary for fulfilling a lead role in technical
training, and forging unity in the unit. The Agency noted these skills are relevant because the
TE provides a lead role in technical training, and serves as a point of contact with employers,
payee organizations and other state/local entities.

In contrast, the Agency noted Complainant did not consistently demonstrate the cooperative,
professional interpersonal skills necessary to work with peers and management in a TE
capacity. Specifically, the Agency noted that on February 17, 2010, shortly after the posting
for the TE position closed, Complainant engaged in a verbal altercation with a coworker
(Employee X) in which the employee reported feeling provoked, attacked, and intimidated.
The Agency noted that in her electronic mail message regarding the incident, Complainant
stated that she and Employee X “got in each other's face and was going at it-word-for-word!”
The record reveals that Complainant was subsequently suspended for two days as a result of
the February 17, 2010 incident for disrespectful and threatening behavior. The notice of
suspension detailed that Complainant lunged toward her coworker causing two members of
management to physically place themselves between Complainant and the coworker because
they believed Complainant was going to strike the coworker.

Moreover, the Selecting Official also stated that she sought recommendations for Complainant
and the Selectee from Person B, who did not recommend Complainant, but did recommend the
Selectee. In his affidavit, Person B cited the Selectee’s experience with DIB, workers’
compensation, CDRs, the Payment Center, and her outstanding personal skills. Person B
noted that Complainant had technical expertise in RSHI but that Complainant requested
assistance from the Selectee in other areas. Person B stated that Complainant’s expertise and
ability to work with others in the role of TE was not on par with the Selectee. Person B also
stated that Complainant had issues dealing with coworkers and noted the altercation with
Complainant and Employee X.

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. In the present
case, the record supports the AJ’s finding that the Agency presented legitimate,
nondiscriminatory reasons for selecting the Selectee, because she had experience adjudicating
complex cases, demonstrated better communicative and interpersonal skills than Complainant,
and the Selectee’s supervisors recommended her for the position.

Complainant failed to show that her qualifications were plainly superior to those of the
Selectee. With regard to the fact that Complainant held the TE position for three years prior to
the selection at issue, the record shows that prior to the elimination of specialization in January
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2009, Complainant was only responsible for adjudicating and developing certain types of
claims, but not the full range of Agency programs as described in the TE position description.
With regard to her contention that the Selectee was hired because of her personal relationship
with the Selecting Official, we note that such treatment is not prohibited by Title VII. Upon
review, we find Complainant failed to show that the Agency’s actions were a pretext for
prohibited discrimination based on race.

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
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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

Date
March 12, 2014