0120063729
11-14-2007
Janet G. Gaugh, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Janet G. Gaugh,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120063729
Agency No. 050159SSA
DECISION
On June 5, 2006, complainant filed an appeal from the agency's May 3,
2006, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Legal Administrative Specialist Post Entitlement Technical Expert
(PETE), GS-10-901, Mid-America Program Service Center, Section 2, Module
11, Kansas City, Missouri. On February 5, 2005, complainant filed an
EEO complaint alleging that she was discriminated against and harassed
on the bases of sex (female), race (White), and age (D.O.B. 10/10/1958)
and in reprisal for prior EEO activity [arising under Title VII] when:
1. GS-105-9/11 Social Insurance Specialist (SIS) (Claims Authorizer),
was filled under vacancy announcement number (VAN) 208-04;
2. complainant learned on about September 28, 2004 that she was not
selected for the position of GS-962-11 Supervisory Contact Representative
(Teleservice Center Supervisor), under VAN 240-04;
3. GS-105-9/11 Social Insurance Specialist (Claims Authorizer), was
filled under VAN 282-04;
4. Complainant was not placed on the well qualified list for the
2005 Leadership Development program (LDP), which was advertised under
announcement number SSA-LDP-3;1
5. Complainant was restricted from performing the critical elements of
her job and denied opportunities to participate in career enhancement
assignments; specifically, she was not permitted to review and mentor
trainees under the provisions of the Receiving Office Training Guide.
At the conclusion of the investigation, complainant was provided 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 she was subjected to discrimination as alleged.
The FAD found as to (1), that complainant failed to establish a
prima facie case of discrimination. Additionally, the FAD found that
the agency articulated legitimate, nondiscriminatory reasons for not
selecting complainant. Specifically, the selecting official explained
that although complainant was included on the "well-qualified" list,
that list was so extensive that it was necessary to use predetermined
criteria to reduce the list to a more manageable size. When the extensive
list was narrowed, complainant's ranking fell below the pre-determined
cut-off, and therefore, she was not eligible for further consideration.
The FAD found no evidence of discriminatory intent.
As to (2), the FAD found that complainant again failed to establish a
prima facie case of discrimination. Additionally, the FAD found that the
agency articulated legitimate, nondiscriminatory reasons for not selecting
complainant. Specifically, the selecting official explained that although
complainant's overall score was the same as the selectee's, her interview
responses caused the selecting official to believe that complainant was
not a team player and that she did not have the ability to give the type
of encouragement and praise needed to work in the Teleservice Center
office environment. The FAD found no evidence of discriminatory intent.
As to (3), the FAD found that complainant again failed to establish a
prima facie case of discrimination. Additionally, the FAD found that
the agency articulated legitimate, nondiscriminatory reasons for not
selecting complainant. Specifically, the selecting official explained
that prior to receiving the well-qualified list, she established a list
of criteria that would be used to identify the most qualified candidates.
The selecting official used the pre-determined criteria and feedback
from the candidates' immediate supervisors to guide her final selections.
The FAD found that while the record shows that complainant was included
on the well-qualified list, complainant was not selected because
she did not receive highly recommended scores in the area of SPIKE2
reliability, flexibility, and productivity, which were the areas the
selecting official found most relevant to the position. The FAD found
no evidence of discriminatory intent.
As to (4), the FAD found that complainant again failed to establish a
prima facie case of discrimination. Additionally, the FAD found that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, in order to be eligible for initial consideration for
the LDP, an applicant was required to obtain a score of 57 or higher.
Complainant's score (37) fell below the cut-off point. The FAD noted
that although complainant contends that the managers who evaluated her
performance gave ratings that ensured she would not be selected, this
is pure conjecture. The FAD noted that the managers stated that their
ratings were based on their observations of complainant and feedback
from managers. The FAD further found that complainant did not offer any
evidence in support of her contention that her ratings were not fairly
assessed, and she failed to establish pretext.
The FAD addressed (5) jointly with the other issues in this case within
a harassment framework, and concluded that complainant did not show that
the harassment was based on anything other than managerial prerogative
or legitimate business decisions. The FAD also found that the record
evidence did not indicate that the challenged conduct substantially
affected the work environment of a reasonable person.
On appeal, complainant reiterates her version of the facts. The agency
requests that we affirm the FAD. 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 EEOC Management Directive 110, 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").
In her Affidavit, complainant explains that in May 2003, she was asked
to conduct a review of a Benefit Authorizer trainee who was a young,
Black male. Complainant states that the trainee made numerous mistakes,
and tried to intimidate complainant when she would point out the errors.
On May 14, 2003, when asked by the Acting Deputy Associate Regional
Commissioner, Payment Center Operations, how the trainee was doing,
complainant indicated that the trainee was not doing well. Complainant
contends that the Commissioner was not pleased with her reply, and states
"I believe many indicators would suggest that management has been under
pressure to give special status to black males, especially young,
black males." Affidavit at 4. Complainant states that she did not
pass the trainee on his review, and as a result she was subjected to a
campaign of harassment by management who held her up as a bad example
and spread false rumors that she was "condescending, snobbish, uppity,
unable to communicate, picky, harsh and set in [her] ways.". Id., at 6.
Complainant claims that she engaged in protected EEO activity when she
reported to management that she felt she was being mistreated and her
reputation was being ruined because she had failed a young, Black male
in his 5 day review, and that this was occurring because she was viewed
merely as another expendable White female over the age of 40. Complainant
further argues that she was not selected for the positions at issue in
this complaint because her managers gave her poor evaluations based on
the unfounded negative reputation she received when she failed the young,
Black male trainee. Addressing reprisal, complainant also states that
she was told by two managers (in similar language) that the fewer people
who knew about her complaint, the better it would be for her career.
As previously explained, the crux of complainant's argument in this
case is that she was harassed and then non-selected for positions and
otherwise treated poorly, as a direct result of her decision to fail a
young, Black male trainee in his review. However, we note that despite
complainant's claim that she was essentially punished for not passing
the trainee, we find it noteworthy that there is no persuasive evidence
that complainant was pressured into passing the trainee. The fact that
a management official asked complainant how the trainee was doing and
apparently referred to the trainee as "bright" is inadequate evidence
in the Commission's view, that complainant was being warned that she
should pass the trainee regardless of his performance. Additionally,
the evidence that this trainee received special treatment is lacking
since there is no indication that complainant's decision to fail him
was subsequently overruled.
Nevertheless, even assuming arguendo that certain managers were unhappy
with complainant's decision to fail the trainee in question, there is
no evidence (other than complainant's speculation) that the trainee's
race, age or sex were the reasons for the managers' discontent about
the fact that the trainee failed. There is also inadequate evidence
that management then treated her poorly because of what transpired with
the trainee. Moreover, the record evidence tends to indicate that some
employees had formed negative opinions of complainant's communication
and/or work style based on factors other than her review of that
particular trainee. For instance, the record contains testimony that
some trainees and journeyman benefit authorizers (for whom complainant
was responsible for providing technical guidance and leadership),
considered her difficult to work for and/or communicate with.
See Report of Investigation at Exhibit 9. There is also testimony
that some instructors considered complainant to be "picky." Id., at
Exhibit 18. In sum, even assuming as complainant contends, that there
was pressure at the facility on management to give special treatment to
the trainee because he was Black, male and/or young, the record does
not indicate, by a preponderance of the evidence, that the subsequent
actions (nonselections, etc.) at issue in this complaint were based on
complainant's decision to fail a Black male trainee (or complainant's
membership in a protected group), as opposed to the legitimate,
nondiscriminatory reasons given by the agency.
As to reprisal, even assuming complainant was told that it would be best
for her career if as few people knew about her complaint as possible, this
by itself does not persuade the Commission that the challenged actions in
this case were motivated by management's dislike for complainant because
she engaged in the EEO process. We note that a hearing would have been
extremely helpful to ferret out the truth of what occurred in this case.
However, we do not have the benefit of an AJ's findings after a hearing,
so we can only evaluate the facts based on the weight of the evidence
presented to us.
Finally, as to the harassment claim, to establish a prima facie case of
hostile environment harassment, a complainant must show that: (1) s/he
is a member of a statutorily protected class; (2) s/he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The record evidence does not suggest that complainant's membership in a
protected group motivated the challenged conduct. Based on a thorough
review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
November
14,
2007
______________________________
__________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 Complainant states that she applied for the LDP position between August
2, 2004 and August 27, 2004.
2 Although not clearly defined in this record, this term appears to
refer to answering customer service 800-number telephone inquiries.
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0120063729
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036