0120151852
10-11-2017
Wilda M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilda M.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151852
Hearing No. 560-2014-00067X
Agency Nos. PHI120623SSA, PHI110043SSA, & PHI100644SSA
DECISION
On April 24, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 27, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Attorney Advisor at the Agency's Office of Disability Adjudication and Review facility in Norfolk Virginia.
On July 27, 2010, November 22, 2010, and August 27, 2012, Complainant filed three EEO complaints which were consolidated on December 21, 2012. The complaints alleged that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 6, 2010, Complainant learned she had not been selected for the position of Senior Attorney Advisor, GS-0905-13, advertised under Vacancy Announcement Number 2010-169.
2. On or about October 4, 2010, Complainant's Supervisor (S1: female) issued her a counseling memorandum concerning the inappropriate release of personally identifiable information;
3. In July 2011 Complainant learned she had not been selected for the position of Administrative Law Judge.
4. Complainant was subjected to a hostile work environment; and
5. On February 8, 2013, S1 yelled at Complainant and forced her to remain in S1's office.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 25, 2014, motion for a decision without a hearing and issued a decision without a hearing on March 16, 2015.
Specifically, the AJ found that, with regard to claims 1 and 2 (claim 2 is identified as claim 3 in the AJ's Decision), the Agency offered legitimate nondiscriminatory reasons for its actions, namely that Complainant was not selected due to poor recommendation from her managers, and that she was issued the counseling memorandum for inappropriately using her own personal email account to transmit private agency information. The AJ further found that Complainant failed to establish that the Agency's articulated reasons were pretextual. With regard to claim 3 (identified as claim 2 in the AJ's Decision) the AJ found that Complainant failed to establish a prima facie case since none of the selectees were selected for the position, which was ultimately filled by transferring an existing Administrative Law Judge from another office. With regard to claims 3 and 4, the AJ found that the incidents were insufficiently severe or pervasive to constitute harassment. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. We note initially that in her appeal brief Complainant states that she is not appealing claim 3, the issue of nonselection for the position of Administrative Law Judge. Accordingly we need not address that claim here. With regard to claim 1, the issue of nonselection for the position of Senior Attorney Advisor, however, Complainant on appeal maintains that the AJ erred in finding that Complainant failed to offer any persuasive argument establishing that the Agency's articulated reason for its decision was a pretext.
Nonselection for Attorney Advisor Position
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume that Complainant established her prima facie case of discrimination when she was not selected for the position of Senior Attorney Advisor.
We next find that the Agency articulated a legitimate nondiscriminatory reason for its action when the Selecting Official (SO: male) averred that he selected the Selectee (S: male) based on the recommendations of Complainant's second and third-level supervisors; the Hearing Office Director (HOD: male), and the Hearing Office Chief Administrative Law Judge (ALJ1: male). SO averred that "I felt [S] was the best candidate. I considered all of the material submitted by [Complainant] in connection with her application. I considered [S]'s performance as an Attorney Advisor to be excellent and the recommendations of his immediate supervisors were very strong." HOD averred that the reason he recommended S and not Complainant to SO was because:
As an Attorney Adviser, [S] consistently exceeded his supervisor's expectations with respect to quality and quantity of his completed work. [ALJ1] told me that all of the judges in the office were impressed with [S]''s legal judgment, job knowledge, and work ethic. Additionally, because of his prior experience as a Claims Representative for the Social Security Administration, [S] has unique job knowledge that allows him to assist judges in processing complex non-disability appeals. I did not recommend [Complainant]. As reported by several of our judges and substantiated by her supervisor, [Complainant] had an ongoing problem with the quality of her decisions. [S] had no such problems. Additionally, Mr. Hellman's work production consistently exceeded [Complainant]'s production.
Report of Investigation for Agency No. PHI-10-0644 (ROI-1), Exhibit 6.
ALJ averred that the reason he recommended S instead of Complainant was because he believed that:
[S] was the best-qualified individual on the list. While there were a total of three candidates, [S] and Complainant were already employed in the Norfolk office and consequently, the management team knew them well . . .. While [S] had not been an attorney advisor in the Norfolk Hearing Office quite as long as [Complainant], he had worked for another component of the Social Security Administration for more than ten years. When comparing their performance in the office, [S]'s performance was superior to that of [Complainant]. This is the opinion of both recommending officials, and the feedback that I had received over the past year or so from all of the judges who work with both [S and Complainant] supports this. [Complainant]'s decision writing requires more scrutiny, correction and re-writes than [S]'s, and in fact, more than any of the other decision writers in the office. In the past year, the quality of [Complainant]'s decisions deteriorated to the point where her first line supervisor had to put her decision writing on 100% review before the decisions went to the judges for their review. In addition, [S] has a commanding grasp and understanding of the Social Security Act, its implementing regulations and the disability process. As such, he is in a far better position than [Complainant] to provide assistance and advice to the judges in more complex cases.
ROI-1, Exhibit 7.
The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden.
Complainant disputes the contention that the quality of her work was inferior to that of S and further argues that:
I also have been informed that the Norfolk office is not authorized, under the pertinent collective bargaining agreement to take into account any 'quota' or numerical system for purposes of evaluation. The conclusory statements by [ALJ1] and [HOD] in their written submissions, that one reason for the recommendation of [S] was the number of decisions written, is directly contrary to these prior representations made to me by [them] and by other management and non-management personnel in the office.
Such an argument we find to be unpersuasive. We note that there is a difference between prohibiting the use of a quota system for purposes of annual and semi-annual performance evaluations on the one hand, and on the other valuing a candidate's production in the context of a promotion. Specifically we note that Complainant has not shown that the latter was prohibited by the collective bargaining agreement.
Complainant next argues that her qualifications were plainly superior to those of S and that this is sufficient to establish pretext. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant notes that she had extensive litigation experience while S had virtually none. We note, however, that while Complainant's litigation experience is undoubtedly impressive, neither the Position Description nor the Vacancy Announcement mention any need for litigation experience.
Complainant argues that there were "irregularities in the selection process [that are] probative of pretext." Specifically she maintains that she had previously asked ALJ1 and S1 what kind of work she would need to do in her current role as attorney advisor to put her in the best position for advancement and that when she was told she was already doing everything she needed to do to be promoted this turns out to have been "a fib." Complainant maintains she requested to be assigned non-disability cases but her requests were denied by S1 and ALJ1, yet in an email from HOD to SO wherein HOD recommended S for the position, HOD stated "As a result of his background as a claims representative for the Social Security Administration, [S] has been able to use this experience to assist our judges and the legal assistant staff in processing non-disability appeals in a timely fashion." Complainant argues that this shows that she was denied opportunities in an area of work that was used to select S. As the Agency points out on appeal however, Complainant's argument is misleading because the email "shows only that the benefit [S] brought to the Agency was his prior claims representative experience, which allowed him to provide quick and accurate assistance in non-disability appeals. . . . Nothing from [SO]'s testimony supports the inference that he viewed [H]'s experience to be better or greater because [H] did non-disability work as an Attorney Advisor and Complainant did not." We agree, Complainant has not shown that H was provided non-disability work as an Attorney Advisor and that it was this work, as an Attorney Advisor, that was used to select him. We find Complainant's arguments about other supposed "irregularities" to be similarly unpersuasive.
Counseling Memorandum
We find that the Agency has articulated a legitimate nondiscriminatory reason for issuing Complainant a counseling memorandum in the memorandum itself, which stated that Complainant sent "an email message containing a claimant's name, Social Security number, and personal medical history to [Complainant's] personal email account [which] violated the agency policy regarding Personally Identifiable Information (PII) and [which] has an adverse effect on both our operation and the efficiency of the service." Report of Investigation for Agency No. PHI-11-0043 (ROI-II), Exhibit 14e. The burden thus shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext. See Hicks; Burdine; McDonnell Douglas. Complainant argues that pretext can be shown by the fact that she was treated differently than S "when he left a computer filled with numerous names, social security numbers, personal medical and other private information exposed in a public place for a period of at least three days" yet received no discipline. HOD averred that S was authorized to take his laptop out of the office to conduct work at home and that he incurred a medical emergency that required that he be:
Rushed by ambulance to a hospital while he was unconscious and in a potential life-or-death situation. I do not know if he had a laptop computer there. I do know that, if the laptop was in the hospital, it would have been encrypted and would have had two separate password protected log-ons. . . . Our primary concern in that situation would have been whether [S] lived or died. We would not have taken action against him for obvious reasons for having the laptop in the hospital. Per my recollection, he was not even conscious when rushed by ambulance to the hospital in critical condition. . . . I cannot say whether the [personally identifiable information] on the computer was compromised. As I indicated above, I believe you would have to be a computer guru to get past two log-ons and the encryption on the computer to access [the personally identifiable information] and even then I'm not sure it's possible.
ROI-II, Exhibit 8.
Because S was authorized to take the laptop from the office and incurred a medical emergency while it was in his possession, and because the laptop was secured by two passwords, we find that Complainant has not shown that she was similarly situated with S. As such, we find that Complainant has not shown that the Agency's articulated reason for its action was a pretext.
In sum, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions in not selecting Complainant and issuing her a counseling memorandum are pretextual, nor has she shown the presence of a material issue of fact.
Hostile Work Environment
Complainant alleges that she was subjected to a hostile work environment when she was issued the October 2010 counseling memorandum and when February 8, 2013, S1 yelled at Complainant and forced her to remain in S1's office. Complainant also referenced another incident when on September 1, 2010, another Administrative Law Judge (ALJ2: male) reported to Complainant's supervisor that Complainant entered his office to ask irrelevant questions that were plainly explained in his typed instructions, with the result that Complainant may no longer meet with ALJ2 for clarification of instructions without the presence of her supervisor or other management official. We note that, in an earlier Decision, we affirmed the Agency's Dismissal of that claim, see Complainant v. Social Security Administration, EEOC Appeal No. 0120111778 (June 30, 2011), and hence the issue may not be raised herein.
With regard to S1 yelling at Complainant and forcing her to remain in S1's office, S1 articulated a legitimate nondiscriminatory reason for her action when she denied that she yelled at Complainant and averred that Complainant "raised her voice and because the discussion wasn't going to be pleasant, I closed the door so that nobody would be disturbed. And so I was standing at the door 4 and I said, '[Complainant], why don't you sit down so we can talk about it.'" February 14, 2013 Deposition. While Complainant disagrees with S1's version of events, she has not shown by a preponderance of the evidence that S1's articulated reason for her action is a pretext to mask reprisal.
We therefore find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of showing discrimination occurred and we AFFIRM the Agency's Final Order.
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:
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. 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
October 11, 2017
__________________
Date
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.
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