0720110031
06-22-2012
Joseph Ponisciak, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Joseph Ponisciak,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720110031
Hearing No. 530-2007-00246X
Agency No. PHI-06-2174-SSA
The Agency filed an appeal with this Commission from the Order Entering Judgment of the Administrative Judge (AJ), dated March 18, 2009, concerning Complainant's EEO complaint of unlawful 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 Agency's April 27, 2009 Final Decision is REVERSED in part.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative Specialist, (Post Entitlement Technical Expert (PETE)) at the Agency's facility in Philadelphia, Pennsylvania. On September 6, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian)1, age (over 40), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In April 2006, Complainant was not selected to participate in the Philadelphia Regional Employee Development Program, (also known as a Regional Intern) advertised under vacancy announcement number (VAN) SSA-2006-149; and
2. In 2006, Complainant was not selected for promotion to the position of Social Insurance Specialist (Claims Authorizer), GS-0105-11, advertised under VAN SSA-2006-250A.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on January 13, 2009. Thereafter, on March 18, 2009, the AJ issued his Decision.
Claim (1) Regional Intern selection
At the outset of his Decision, the AJ granted the Agency's February 12, 2008 motion for a decision without a hearing with respect to claim (1) (Regional Employee Development Program). The AJ found that Complainant was not a top recommendation for the position when his second level supervisor (S2) was asked to identify the top candidates for the vacancy. S2 stated that Complainant did not show initiative in his work, did not finish some work promptly, did not take on additional work voluntarily, and did not mentor employees unless he was assigned. The AJ found that S2's assessment of Complainant's work caused him to not be recommended to the selecting official for the intern position. The AJ further found that Complainant did not show that S2's reasons for her actions (and in turn, the Agency's actions) were false and a pretext to mask discrimination on any basis. Accordingly, the AJ found no discrimination occurred as alleged on any basis with respect to claim (1).
Claim (2) Social Insurance Specialist selection
Regarding claim (2), the AJ found that Complainant established a prima facie case of age discrimination when he was not selected for the position of Social Insurance Specialist (claim (2)). Specifically, the AJ found that 20 candidates were selected for the vacancy from a pool of 34 applicants. The AJ noted that Complainant is over 40 years old, and thus in the ADEA protected group, and that some of the selected candidates were under 40 years of age. However, the AJ found that Complainant did not present evidence that he was discriminated against based on his age when he was not selected. Thus, the AJ found no age discrimination with respect to claim (2).
The AJ also found that Complainant established a prima facie case of discrimination based on reprisal for Complainant's prior protected activity. The AJ found that the Agency officials involved in the selection process were aware of Complainant's prior protected activity and that Complainant served as a Union official representing other employees in the EEO process.
In the selection process for claim (2), the AJ found that the candidates for the Claims Authorizer position were ranked by their first level supervisors in six performance areas: job knowledge; communications; reliability; flexibility and initiative; analytical ability; and current performance. However, ultimately the selection panel only considered two areas (analytical ability and job knowledge) to determine which candidates to select. The AJ noted that all candidates whom the selection panel rated as "highly qualified", "second qualified", and "next qualified" were selected. For each of those three applicant groups, the candidates must have been rated as "outstanding" by their immediate supervisor in the two considered performance areas. Complainant's immediate supervisor, S1, rated Complainant as "average" in all six performance areas, and thus Complainant was not in any of the three groups selected for the position.
The AJ noted that S1 had served as Complainant's first-line supervisor for approximately two months at the time she was asked to assess Complainant's performance for the selection process. When questioned about her reasons for giving Complainant an "average" performance rating regarding job knowledge, S1, the AJ observed, explained that Complainant did only what was asked of him and that he "rarely asks for assistance". Regarding his technical ability, the AJ observed that S1 stated Complainant has "no problems interpreting or reading the procedures or in making decisions." The AJ noted that S1 commented that Complainant did not go beyond his technical knowledge and did not show initiative, which she believed was necessary to achieve an outstanding assessment. The AJ found that S1 did not discuss her assessment of Complainant with the selection panel's four members.
The AJ found the Agency failed to articulate a legitimate, non-discriminatory reason for its actions. Further, the AJ found that the selection process erected by the Agency for this position was easily manipulated. Specifically, the AJ observed that the four performance areas (flexibility and initiative; communication; reliability; and current performance) that formed the basis of S1's reasons to not assess Complainant as a top candidate for the Regional Intern position were eliminated in the selection process for the Social Insurance Specialist position.
The AJ found that S1's statements about Complainant's performance provided no support for the Agency's decision to not select Complainant. The AJ considered S1's explanation at the hearing regarding her assessment of Complainant's job knowledge and his analytical skills. S1 testified that Complainant did not take initiative. The AJ noted that initiative, however, was rated separately among the performance areas that S1 was asked to assess. The AJ found that S1 was unable to offer any support for her assessment of Complainant's work in these two areas. Again, the AJ noted that the panel members made no effort to reconcile the disparity in assessments among candidates receiving similar performance comments from supervisors.2 The AJ found that Complainant's rating was artificially suppressed. Moreover, the AJ found that Complainant was engaged in protected activity at the time of the selection process and thus Complainant established the necessary nexus between his protected activity and the selection process. The Agency, the AJ effectively found, failed to establish a legitimate, non-discriminatory reason for its actions.
Additionally, the AJ noted that during the interview process, the four panel members created notes at the time of the interviews, but that the members failed to preserve their notes. The two panel members who interviewed Complainant, the AJ found, could not remember the substance of Complainant's interview except for vague recollections about the quality (good, weak, etc.) of Complainant's answers. Thus the AJ found that Complainant was denied the opportunity to cross-examine the panel members with respect to the rating that they assigned to Complainant's interview performance. As a sanction for failing to preserve evidence pursuant to 29 C.F.R. � 1602.14, the AJ found that Complainant was entitled to a finding that he achieved the highest assessment at the interview, rather than the medium rating he purportedly was assigned by the panel members.3
The AJ concluded that the Agency discriminated against Complainant on the basis of reprisal as alleged in claim (2), and provided Complainant with remedies including placement in the position he was denied, back pay, and ordered the Agency to post a notice of its violation of Title VII.
ANALYSIS AND FINDINGS
Because Complainant has not filed an appeal, we will not consider claim (1) in this decision or the finding of no age discrimination for claim (2). The Agency is only appealing the finding of reprisal in claim (2).
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.
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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, we find the evidence substantially supports the AJ's Decision regarding claim (2). We find that the evidence supports the AJ's finding that Complainant established a prima case of reprisal with respect to claim (2). Complainant applied for selection, was found qualified, and some of the selectees were under 40 years old. We further find the evidence shows that Complainant has engaged in the EEO process prior to the selection and that the officials involved in the selection process were aware of Complainant's prior EEO activity.
We agree with the AJ that the Agency effectively failed to provide legitimate, non-discriminatory reasons for the non-selection of Complainant. Even if we considered the interviews, Complainant would still be denied the opportunity to rebut any substantive assessment that purportedly led to his non-selection. The assessment provided by S1 of Complainant and purportedly relied upon by the Agency did not correspond with the areas S1 was asked to assess. Also, selections were made for persons similarly assessed to Complainant with no distinction made for Complainant to rebut. We find the AJ properly found that reprisal more likely than not motivated the Agency's decision to not select Complainant for the position identified in claim (2).
CONCLUSION
We REVERSE the Agency's Final Order with respect to the claim of reprisal in claim (2). We ORDER the Agency to provide Complainant with the remedies set forth in the AJ's Decision, as slightly modified herein.
ORDER
The Agency shall take the following remedial actions:
1. Within 60 days of the date this Decision becomes final, the Agency shall offer Complainant the position or a substantially equivalent position to the one for which he was not selected under Vacancy Announcement SSA-2006-250A;
2. Within 60 days of the date this Decision becomes final, the Agency shall pay Complainant back pay beginning on the date of the appointment of the selectees in accordance with the Back Pay Act. The Agency must use the promotion history of the selectee promoted to the highest level. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Within 180 days of the date this Decision becomes final, the Agency shall provide a minimum of eight hours of EEO training, focusing in part on retaliation, to the responsible management officials.
4. Within 180 days of the date this Decision becomes final, the Agency shall consider appropriate disciplinary action against all responsible management officials. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reasons(s) for its decision not to impose discipline.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Philadelphia, Pennsylvania facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
June 22, 2012
__________________
Date
1 The record shows that Complainant withdrew the basis of race prior to the commencement of the hearing of his complaint before the AJ.
2 For example, the panel members did not discuss the assessments provided by the first-line supervisors. S1 noted that Complainant "rarely" sought assistance and that he had "no problems" reading and interpreting procedures, which the AJ found could only be interpreted as positive comments. The AJ found it incredible that panel members did not question why similar comments (e.g., "interprets procedures and makes correct determinations") from other supervisors netted candidates an "outstanding" rating on the same document. That document was then used by panel members to place applicants in the top groups (most qualified, second qualified, etc.) from which the ultimate selections were made.
3 The AJ noted that had the Agency conducted a fair selection process, even the medium rating the panel members assigned Complainant's interview performance might have resulted in Complainant being selected for the Claims Specialist position.
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0720110031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013