Robin H.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionJun 5, 20180120161580 (E.E.O.C. Jun. 5, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Robin H.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161580 Agency No. NY-15-0010-SSA DECISION Complainant appeals to the Commission from the Agency’s final decision dated March 7, 2016, finding no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Disability Processing (DP) Specialist, GS-12, at the Northeastern Program Service Center, DP Branch, Jamaica, New York. On December 23, 2014, Complainant filed his complaint alleging discrimination based on age (over 40), race (Caucasian), and religion (Jewish) when: (1) On October 2, 2014, he learned he had not been selected for a promotion to the position of DP Section Chief at DP Branch advertised under Vacancy Announcement #SN- 1168808-14; and 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120161580 2 (2) On October 30, 2014, he received a rating of “3 out of 5” in the element of interpersonal skills on his Annual Performance Assessment and Communication System (PACS) reviews. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. ANALYSIS AND FINDINGS 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the incidents. At the relevant time, Complainant was employed by the Agency as a DP Specialist, GS-12. Regarding claim (1), the Selecting Official (SO), Assistant Regional Commissioner for Processing Center Operations at the Northeastern Program Service Center, indicated that for the DP Section Chief, GS-13 position at issue, she was looking for applicants who had recent successful management experience. The record indicates that the SO did not convene a hiring panel or interview panel for the position at issue. Rather, the SO stated that she designated members of her staff to reach out to the managers of the candidates to obtain their recommendations. The DP Branch Manager stated that he assisted in the selection process for the position at issue by obtaining feedback and collecting qualification information for candidates on the best qualified list from their managers. Complainant’s first-level supervisor (S1) indicated that at the relevant time, the DP Branch Manager asked her for her recommendation of Complainant for the position. S1 stated that she recommended Complainant for the position and between the choice of “recommended” or “highly recommended,” she gave Complainant “recommended” based on his characteristics and requirements necessary for that position after observing his mentoring and training activities he participated in. S1 acknowledged that Complainant had more years of experience as a DP Specialist than the Selectees, but he did not have recent managerial experience. S1 noted that Complainant served recently as a training instructor and mentor, but his managerial experiences were many years ago. 0120161580 3 The SO indicated that she selected three Selectees for the position at issue because they had demonstrated recent successful leadership as well as management skills. Specifically, the SO stated that she received excellent recommendation for Selectee #1, a Disability Processing Specialist, who just came back from a recent one-year temporary promotion as an Assistant District Manager, GS-13, in the Mineola Field Office. Selectee #1 previously held the Assistant Module Manager position at the Program Service Center prior to her maternity leave. The SO indicated that Selectee #2, a Module Manager, GS-13, applied on a lateral basis for the position at issue because he wanted to be part of the expanding role of the DP Branch, i.e., new fraud unit. The SO indicated that she selected Selectee #3, a Supervisory Social Insurance Specialist, Assistant Module Manager, GS-12 because he had been very successful in that supervisory position and she was aware of his management skills. The SO indicated that all three Selectees had recent managerial experience which was a strong factor for consideration. Regarding claim (2), S1 indicated that for his 2014 appraisal at issue, she gave Complainant the rating of 3 (out of 5) on his interpersonal skills assessment because his interpersonal skills were satisfactory. S1 acknowledged that Complainant volunteered to instruct the bilingual class, served as the training coordinator for the DP Branch class, and mentored two trainees. S1 indicated that there were some instances where Complainant was disruptive and she addressed that matter with him. The record reflects that Complainant previously received the rating of 3 for interpersonal skills for his appraisal years 2012 and 2013. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. We also find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, Complainant failed to show that his qualifications for the position were plainly superior to the Selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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: 0120161580 4 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 0120161580 5 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 5, 2018 Date Copy with citationCopy as parenthetical citation