0120110543
07-11-2014
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110543
Agency No. ATL-10-0220-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 2010, final decision 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. For the following reasons, the Commission affirms the Agency's final agency decision (FAD), which found that Complainant failed to demonstrate that she was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resource Specialist, GS-12, at the Agency's Center for Human Resources in Atlanta, Georgia. The record reveals that Complainant applied for the position of Management and Program Analyst (MPA) and was one of seven candidates to be referred for consideration. The Selecting Official (SO) did not interview any of the candidates but instead focused on their employment packets. Complainant was not selected for the position. Instead, two African American employees were selected for the position. Complainant maintained that the SO had a history of hiring only African American candidates. Believing that she was not selected for the position for discriminatory reasons, Complainant, on February 19, 2010, filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Caucasian) and national origin (Hispanic) when she was not selected for the Management and Program Analyst, GS-13 position.
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant failed to show that she was subjected to discrimination. The SO and concurring SO explained that they did not choose Complainant because, for the past couple of years, she has not demonstrated the ability to provide the services or products required for her position nor has she been able to perform the duties of a staff assistant in the immediate office of the Center Director. The concurring SO indicated that Complainant had been in her position for four years and yet was not performing at the expected level. Management explained that as a GS-12 HR Specialist, an employee was expected to be a professional and a consultant to management and supervisors. The concurring SO indicated that GS-12 Specialists were expected to, among other things, provide technical advice to customers, resolve difficult problems, interpret and apply the rules for various promotion plans and union agreements. Input from customers, however, indicated that Complainant did not have the body of knowledge necessary for customers to have confidence in her advice and assistance. The concurring SO stressed that some of the issues brought to management's attention show that Complainant lacked knowledge in some basic staffing principles. Management also noted complaints about the timeliness of Complainant's work product. Management indicated that applicants for the GS-13 position were expected to bring expertise to the job which Complainant could not do.
Management asserted that it chose the selectees over Complainant for the following reasons: selectee-1, was chosen because he was an excellent employee, he received an excellent recommendation - his supervisor stated he was ready for the additional responsibility, he worked in the training division and did an excellent job; he performed exceptionally in his previous positions; he frequently served as a trainer; he also rotated in the same Team Leader position that Complainant did, and demonstrated the ability to provide expert advice to staff and managers. The SO stated she was very impressed with his performance and characterized him as a true team player that sought out different ways to resolve issues.
Selectee-2 was chosen because she was an excellent employee, her recommendation was very good; her training performance was excellent, she is a great facilitator and presenter, her previous supervisory experience and other work experience was/is outstanding; and she demonstrated dedication, loyalty and understanding of the position.
Complainant's direct supervisor indicated that she did not recall providing Complainant with a recommendation but maintains that had she provided one she would have indicated that she disagreed with Complainant's assertion that her knowledge, skills and abilities were equal if not more than the selectees'. She stated that she had many performance discussions with Complainant. According to the supervisor, Complainant was not performing at the level expected based on the number of years she spent in the HR arena. She explained that Complainant made simple mistakes and errors on a continuous basis that a specialist with her length of service should not have made.
The supervisor stated that each time she talked to Complainant in an effort to determine the problem and to see if training could be an issue, Complainant became defensive and would not discuss her deficiencies. She maintained she was working with Complainant to get her to improve her knowledge base. She also stated that while temporarily promoted to the GS-13 Team Leader position, Complainant's performance allowed her to recognize the deficiencies in Complainant's HR knowledge base and that she was "dumbfounded" about the mistakes Complainant made when servicing ODAR. Finally, she acknowledged that she has seen some improvement in Complainant's communications with her team leader and she was optimistic that these improved communications would help increase Complainant's basic HR knowledge.
Both the SO and concurring SO denied that race or national origin were factors in Complainant's non-selection. Moreover, management denied that there was a pattern of selecting only African American candidates as individuals of other races had been selected for positions in the Center.
The Agency maintained that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. Therefore, the FAD found that Complainant failed to establish that she was subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that there was a lack of transparency and significant discrepancies in the selection process. Complainant argues that managements' reasoning for the selections were inconsistent and rehearsed and did not explain the real motive behind the selections. She also maintains that she was deprived of fair and equitable consideration in the selection process and the criteria utilized by the Agency showed disparate treatment, inconsistency, and a lack of credibility. Finally, Complainant asserts that for the last three fiscal years, the selections, promotions, and reassignments under the Center Director have been granted only to African American candidates.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the position because the issues with her performance negatively affected her candidacy. We find the Agency clearly articulated the reasons why Complainant was not selected for the position.
Further, we note that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that her qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, however, Complainant has failed to make this showing. Neither she nor the record provide any persuasive evidence that Complainant was so better qualified for the position than the selectees that discrimination could be inferred from her non-selection. The record also does not show that the selecting official considered Complainant's protected bases with regard to the nonselection.
Additionally, with regard to Complainant's contentions on appeal, we find that other than her own conclusory statements she has provided no evidence which supports her contentions. Moreover, we find that Complainant does not deny that her work performance was at issue which is the reason provided for her non-selection. Finally, we note that contrary to Complainant's contentions that only African Americans have been selected, promoted, or reassigned the last several years, the facts show that Complainant was promoted to a Team Leader position during this time period. Accordingly, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
Therefore, we AFFIRM the Agency's FAD which found that discrimination did not occur.
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
__7/11/14________________
Date
2
0120110543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110543