Carolann P.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120151392 (E.E.O.C. Feb. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Carolann P.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120151392
Agency No. ATL130898SSA

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 29, 2015, final decision concerning 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. For the following
reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-8 Teleservice
Representative (TSR) at the Agency’s Teleservice Center (TSC) Unit 9 facility in Birmingham,
Alabama. Complainant applied to participate in the Growth and Enrichment in the Atlanta
Region (GEAR) program, created to help GS 7-9 TSRs gain new skills to be promoted to the
next level. However, even though she was informed that she had scored 100 points in the self-
assessment category and thus was referred to the Selecting Official (SO) for consideration, on
September 18, 2013, she received an email announcing the selection of four Birmingham TSRs
for the program (Complainant was not selected).

On December 4, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of age (56) and in reprisal for prior protected EEO
activity. She contends that the selectees were preselected and that the Birmingham TSC has a

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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tendency to disregard TSRs with the most seniority and experience and favor newer and
younger employees with much less experience. She also believes nepotism plays a role in the
decision making because many selectees are friends, relatives, church members, and sorority
and fraternity members with the management and selection officials. 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).

On June 11, 2014, Complainant filed a request for a hearing. On November 5, 2014,
Complainant withdrew her request for a hearing. On November 10, 2014, the AJ instructed
the Agency to issue a decision. In accordance with Complainant’s request, the Agency issued
a final decision pursuant to 29 C.F.R.§1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination and reprisal as
alleged.

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, at Chapter 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”).

The Agency articulated legitimate, nondiscriminatory reasons for Complainant’s nonselection.
Twenty candidates were on the recommendation list submitted to the Selecting Official.
Complainant was not on the list. All the selectees were on the list submitted to the SO for
ranking. Complainant has offered no evidence that the SO was under any obligation to select
anyone who was not on the list.

Complainant also has not offered any evidence of age discrimination. There were four
components by which the candidates were rated, and all of the candidates who made the list
received higher overall scores than Complainant.

Complainant scored 100% in Self-Assessment, which was based on her responses to the
Occupational Questionnaire. All of the recommended candidates also were rated 100% on this
component.

With respect to the second component, Supervisory Evaluation, Complainant was evaluated in
four areas: Interpersonal Skills, Oral Communications, Integrity/Honesty, and Public Service
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Motivation. The scale was 1-5, with 1 representing little or no potential and 5 representing
exceptional potential. Complainant’s first level supervisor, S1, and her second-level
supervisor, S2, rated Complainant. In the area of Interpersonal Skills, S1 and S2 rated her at 3
(average potential), for a combined score of 6. For Oral Communications, S1 rated
Complainant at 4 and S2 rated her at 3 for a combined score of 7. In the area of
Integrity/Honesty, S1 rated Complainant at 5 and S2 rated Complainant at 4 for a combined
score of 9. In Public Service Motivation, S1 rated Complainant at 4 and S2 rated Complainant
at 3, for a combined score of 7. Combined scores of 6-7 were worth 1 point and combined
scores of 8-9 were worth 3 points. Consequently, Complainant received 1 point for three
categories and 3 points for one, resulting in an overall score of 6 out of 20 points. Both
supervisors recommended Complainant for the GEAR program. Neither supervisor
participated in the selection process.

In the third component of Job-Related Achievements, Complainant received 0 of 10 award
points because the rating period was restricted to 2008, and none of Complainant’s awards
were during that time period. In the Training and Self-Development component, Complainant
received the maximum 5 points for her college course, and 1 point for the year she obtained
Opportunity for Excellence experience. Complainant, however, received 0 points because she
had not taken any technical courses in 2008, and because she had not obtained any Week to
Extend Knowledge experience. Her total for the fourth component was 6 out of 25 points.
Cumulatively, Complainant’s combined overall score was 112 points, 100 of which was her
self-assessment points.2

The twenty candidates whose names were submitted to the Selecting Official all achieved
higher overall scores than Complainant ranging from 132.5 to 146 points.

With the exception of one candidate (ultimately not selected), who received a supervisory
rating from Complainant’s second-level supervisor S2, all of the recommended candidates were
rated by different supervisors from Complainant. Complainant offered no evidence to suggest
that S2 was motivated by Complainant’s age or prior complaints in her assessment. We also
note that one selectee was 52 years old. Complainant states that she did not know the ages of
any of the selectees but believed she was better qualified because of her lengthy experience and
years in the Teleservice Department. The ranking factors appear reasonable and there is no
indication that they were formulated or applied with any discriminatory intent. Complainant’s
experience, even if we assume it was greater than the recommended candidates, does not show
she was better qualified or that the selection process was motivated by discrimination.

Finally, even if the GEAR program selectees were chosen because of their relationships with
the decision makers, evidence of which Complainant did not submit, Complainant’s allegations
of nepotism do not establish that discrimination on the basis of age or in retaliation for prior
protected activity was a factor.

2 The Agency decision erroneously reports that Complainant received 122 points.
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CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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“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

February 16, 2017
Date