closed0120113703
02-08-2013
Beverly G. Thomas, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Beverly G. Thomas,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120113703
Hearing No. 530-2008-00184X
Agency No. NY-07-0077-SSA
DECISION
Complainant filed an appeal from the Agency's June 20, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Service Representative at the Agency's facility in Trenton, New Jersey.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (49 years old at the time of the alleged incident) when:
she was not selected for the position of Social Insurance Specialist (Claims Representative), GS 105-5/7, advertised under vacancy announcement No. NY-MR-6-036.
The Agency accepted Complainant's complaint for investigation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on November 30, 2010, and issued a decision on May 6, 2011.
The AJ found that Complainant established a prima facie case of age discrimination when two selectees outside of her protected class (under age 40) were selected for the position at issue. The AJ found, however, that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ found that the selecting official asserted that one of the selectees impressed her as a candidate based on her attention to detail and outstanding learning skills. The AJ further found that the selecting official chose the other selectee because she was an outstanding candidate based on her communication, learning, analytical, and interpersonal skills. The AJ further found that Complainant did not establish, by a preponderance of the evidence, that the Agency's articulated reasons for its actions were pretext for discrimination. Specifically, the AJ noted that while Complainant served for many years as a Service Representative with the Agency, this service does not render Complainant better qualified for the Claims Representative position, which was more complex.1
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.
The instant appeal followed.
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.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that there is substantial evidence in the record to support the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains a deposition from Complainant's second-level supervisor during the period in question.2 Complainant's second-level supervisor was also the selecting official for the position in question. The selecting official stated that hiring for the position in question was through the Federal Career Intern Program (FCIP).3 The selecting official asserted that she contacted two local colleges and provided them information about the position. Selecting Official's Deposition (SO's Dep.) at 24. The selecting official stated that internal applicants could also apply and be considered for the position. SO's Dep. at 31-32. The selecting official asserted that she was advised by human resources to only forward the names of the candidates to personnel that she determined were the most suitable for the position. Id. at 85.
The selecting official stated regarding one of the selectees that she was "extremely articulate" in the interview. Id. at 44. Specifically, the selecting official asserted "[s]he was very quick that when [we] presented a situation to her and asked her to respond, she was able to understand what we were asking for and figure out a response that was appropriate to what we were asking...[S]he described herself as very meticulous and wanted to do very, very well."
The selecting official further stated that the information provided by her references indicated that this selectee was a good analyst, very quick learner, took initiative, and paid great attention to detail. Id. at 45.
The selecting official also provided her reasons for choosing the other selectee. She noted the selectee's responses during the interview were "right on point." Id. at 46. Specifically, the selecting official stated "she was very articulate, very well spoken...[and] her eagerness came across during the interview." Id.
The selecting official further stated that the information provided by this selectee's references indicated that she sought to accomplish her work in the best way possible and to look for ways to improve procedures. Id. at 47
The selecting official noted that Complainant was a successful service representative. Id. at 48. However, she further asserted from her own observations and conversations with Complainant's first-line supervisor that "there were certain areas of work that ...did not define [Complainant] as an outstanding candidate [for the claims representative position]." Id.
Complainant's first-level supervisor testified that "the level of explanations provided to [a] claimant in a reception role probably could be improved upon and that sometimes the explanations seemed very elemental...there were some cases that maybe [Complainant] should take another look at, take a different approach to resolving the problems since obviously the first attempt did not work." Hearing Transcript (Hr'g Tr.) at 176-177.
We find that there is substantial evidence in the record to support the AJ's finding that Complainant failed to establish that the Agency's articulated reasons for its actions were pretext for discrimination. Complainant makes reference to her lengthy employment history with the Agency in the position of Service Representative. However, the selecting official in her deposition asserted "[t]his being an entry level position, the position is being filled on the basis that these selectees, regardless of who they are, are going to be given full training on what they need to be a claims [representative] with the assumption they have no prior knowledge of social security. So in terms of thinking that [Complainant] has specific knowledge regarding this particular social security program that in and of itself would not...be a factor."
Finally, we find that there is substantial evidence in the record to support the AJ's finding that Complainant "failed to show that the selecting official intentionally, and based on Complainant's age, chose criteria for the position or the method of seeking candidates to ensure that Complainant could not be referred for selection." A Human Resources (HR) Specialist testified at the hearing that "the process for managers [at the time] was that...they would review resumes, and they would determine who of the people that they has collected resumes from were the most promising candidates. And then they would submit those names to personnel. And those people would be given link...so that they could complete the questionnaire that was required." Hr'g Tr. at 99-100. The HR Specialist testified that they were being consistent in following that process at that time. Hr'g Tr. at 136, The HR Specialist testified that to the extent that the process being followed at that time may have differed from the guidance for FCIP recruitment, "we were young, we were inexperienced, we didn't know. We were doing what we knew to do." Id.
Based on the foregoing, we find that Complainant has not established, by a preponderance of evidence, that the Agency's articulated reasons for her nonselection were pretext for age discrimination.
Accordingly, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
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 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
February 8, 2013
Date
1 While the AJ, in the conclusion of her decision, found that Complainant was not discriminated against on the basis of "sex," we agree with the Agency that this was an inadvertent error. We note that throughout the remainder of her decision, the AJ makes reference to the proper basis of age and the ADEA.
2 The record reflects that the selecting official did not testify at the hearing because at that time she was retired from the Agency.
3 The record contains a document entitled "SSA Federal Career Intern Program-Guidance for Personnelists and Managers" (hereinafter "FCIP Guidance"). The FCIP Guidance provides, in pertinent part, that "[t]he program will be used to facilitate the employment of exceptional individuals with diverse professional experiences, academic training and competencies and prepare them for careers which support our mission of public service."
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0120113703
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113703