0120152178
07-21-2017
Billi D.,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
Billi D.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120152178
Hearing No. 420201400217X
Agency No. ATL130760SSA
DECISION
Complainant timely appealed to this Commission, pursuant to 29 C.F.R. � 1614.403(a), with regard to her equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Throughout the relevant timeframe, Complainant was employed as a Teleservice Representative ("TSR"), GS-8, at the Agency's Birmingham Teleservice Center in Birmingham, Alabama.
On November 19, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (50) when:
On August 14, 2013, she learned that she was not selected for the position of Teleservice Assistant (also referred to as "TA" or "Lead Contract Representative"), Vacancy Announcement Number SB-85-4878-13 MDC.
At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the Report of Investigation ("ROI") and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which the AJ assigned to the case granted on April 29, 2015, finding the record sufficiently developed so that no question of material fact or issue of credibility existed to warrant a hearing.
In reaching this decision, the AJ also determined the following undisputed facts:
In March 2013, a vacancy announcement for a Lead Contact Representative, also known as a Teleservice Assistant ("TA") position was posted. Complainant applied and the Agency's Center for Human Resources placed her (along with about 49 other applicants) on the "Merit Promotion Certificate of Eligibles." In accordance with Merit Promotion policy, any candidate on the "Certificate of Eligibles" was considered qualified for the TA position. Shortly after the position was filled, another TA vacancy opened, so the Agency selected another candidate from the same Certificate of Eligibles. Complainant was considered for both TA vacancies.
The Teleservice Center was organized into units of roughly 8 to 18 TSRs and one TA, that reported to a Unit Supervisor, who in turn, reported to a Section manager. The role of the TA was to "[p]rovide technical assistance and guidance to [TSRs] in handling telephone inquiries and other requests for assistance from the public [and ensure] uniform and proper application of [Agency] laws, regulations, policies and procedures and assists supervisor in carrying out the work of the unit." To qualify, applicants were required to have "fifty-two weeks of specialized experience at least equivalent to the GS-8 level" (essentially TRS experience or similar). Applicants were not required to hold advanced degrees.
A Section Manager ("SM") in the Birmingham Office, who was outside both Complainant and the selectees' chains of command, was appointed as the selecting official for both TA vacancies. SM gathered recommendations from the supervisors of all of the candidates on the List of Eligibles. The supervisor recommendation forms also listed the 9 subject areas that SM took into consideration: overall work performance; dependability/reliability; initiative and flexibility; written communication skills; oral communication skills; keyboard/computer skills; interpersonal skills; openness to taking direction; and ability to work under stress. She then scheduled interviews with the candidates whose supervisors rated them as "very highly recommend" or "highly recommended." The final decision would be based on the supervisor recommendation, panel interview score, and the background information (awards, training, education) found on the candidates' applications.
Complainant and the two candidates that SM selected ("C1" and "C2") all received a "highly recommend" or "very highly recommend" from their supervisors, and either "outstanding" or "excellent" ratings for the 9 subject areas. However, Complainant scored 22 out of a possible 40 points on her interview, whereas C1 scored 35 and C2 scored 38. According to SM, Complainant's score was significantly lower because she "provided very few specific examples during her interview...[and] failed to directly answer many of the questions and gave answers that did not relate to the question." SM cites the interview as a determining factor for scoring of the candidates' "interpersonal and communication skills." For "leadership skills and self-development" SM cited "applicable coursework" associated with C1 and C2's advanced degrees, which Complainant did not have. For "ongoing self-development" SM determined that the training C1 and C2 listed in their applications, which included volunteering to take on additional work in the office and attending trainings in the office were more relevant than Complainant's training, which was mostly related to taking claims as opposed to leadership, decision making, or strategic thinking.
During the relevant time frame, C1 and C2 were ages 32 and 31, respectively, whereas Complainant was 50 years old. Complainant had a bachelors degree and 17 years of TSR experience when she applied for the TA position, having started her career with the Agency in 1997. C1 and C2 both had masters degrees in social work and were both hired by the Agency in 2009, giving them just under 5 years of TSR experience when they applied for the TA position. SM, who was in her 50s during the relevant time frame, states that she was unaware of the candidates' ages when she conducted the panel interview and made her selection.
It appears from the record that the Agency did not issue a final order within forty days of receipt of the AJ's decision, so, in accordance with 29 C.F.R. � 1614.109(i), we consider the AJ's decision to be the Agency's final action on the matter. The instant appeal followed.
ANALYSIS
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, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for such disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Since the instant complaint involves an allegation of disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for not selecting complainant, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's non-selection 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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502 (1993).
In a non-selection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Ed., EEOC Request No. 05970561 (Aug. 6, 1998). Further, in non-selection cases it is the Commission position that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Here, the Agency's legitimate non-discriminatory reason for selecting C1 and C2 instead of Complainant for the TA position was that SM, as the selecting official, determined that they were more qualified than Complainant, based on their applications (which included education and training), panel interview scores, and supervisor recommendations. Moreover, SM determined that C1 and C2 were "the best overall qualified in the areas of technical knowledge, communication skills and ability, interpersonal skills, leadership skills, reliability, and ongoing self-development."
On appeal, Complainant argues that her numerous ROC awards and 17 years working as a TSR for the Agency, compared to C1 and C2's 4 years of experience as TSRs give her observably superior qualifications for the TA position. Complainant also disputes the AJ's finding that she presented no "direct evidence" of discrimination. She cites SM's alleged change to her explanation for Complainant's nonselection and variations in SM's statements explaining Complainant's poor interview score are "direct evidence" of discrimination based on the context of the statements. Although we find it concerning that SM's "panel" interview metrics are not available or fully explained in the record, the affidavits, party submissions and candidate applications support SM's stated rationale and decision. Similarly, we are not convinced by Complainant's new allegation that she was assigned training duties instead of C1 and C2 even though training is a TA responsibility, constitutes direct evidence of discrimination.
Contrary to Complainant's contention on appeal, C1 and C2 have both earned ROC awards. Additionally, both participated in Opportunities For Excellence Program, which encompasses additional training. While Complainant correctly points out that a master's degree is not a requirement for the TA position, we find SM's reasoning that this educational experience was relevant to the TA position supported by the record. The Social Work coursework and clinical experience C1 and C2 describe in their applications, particularly their experiences explaining complex social welfare programs to a variety of demographics, are relevant to the TA position. C1 also mentored new hires, providing them with one on one training, and C2 has gained outside experience conducive for training.
The record supports that Complainant's 17 years as a TSR have provided her with a demonstrated expertise and deep understanding of a variety of relevant programs and protocol, as well as advanced knowledge of a number of technical troubleshooting issues and experience assisting both colleagues and the public. However, after careful review, we do not Complainant has not demonstrated pretext, as the evidence does not indicate that her qualifications were "plainly, demonstrably, or clearly superior" to those of C1 and C2. Ultimately, SM, in choosing among multiple qualified employees, chose the individuals that she felt would be better suited for the job. In such instances, we have found that absent a showing that proscribed considerations entered into the decision-making process, we will not substitute our judgment for that of the selecting official. See Gilbert v. EEOC, Appeal No. 07A30049 (Aug. 11, 2004).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Action.
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
July 21, 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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