Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120121129 (E.E.O.C. Mar. 20, 2013)

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

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120121129

Hearing No. 410-2010-00218X

Agency No. ATL-09-0720-SSA

DECISION

Complainant filed an appeal from an EEOC Administrative Judge (AJ)’s decision dated October
28, 2011, which was subsequently adopted by the Agency in its final order dated January 17,
2012, finding no discrimination with regard to her complaint. For the following reasons, we
AFFIRM the Agency’s final order.

BACKGROUND

In her complaint, dated August 24, 2009, Complainant alleged discrimination based on age
(over 40), race (African American), sex (female), and in reprisal for prior EEO activity when
she was not selected for the position of Deputy Center Director for the Center for Disability,
GS-14, in July 2009, and when she was subjected to a hostile work environment due to her
prior EEO activity. At the conclusion of the investigation, Complainant requested a hearing
before an AJ. The AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order.

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
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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.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ noted that on May 22, 2009, the Agency posted an
internal job advertisement for the GS-14, Deputy Center Director position at issue under job
announcement number SG-261297-09-LC in the Atlanta Regional Office Center for Disability
Operations. Complainant, a GS-13 Supervisory Management Analyst on the Management
Information Team, applied for the position and was one of 18 candidates who made the
certificate of eligibles. The AJ noted that the Director for the Center for Disability Operations
(the Center Director) reviewed the certificate and recommended her top two candidates for
consideration. The Center Director stated that based on her knowledge and observation of
Complainant, Complainant lacked leadership or interpersonal skills for the position at issue.
She also indicated that Complainant lacked flexibility or willingness to work with change to
achieve a successful outcome.

The Deputy Assistant Regional Commissioner of Management and Operations Support, a
selecting official for the position at issue, indicated that what she looked for in a candidate
when selecting the Deputy Center Director position at issue was: a high level of interpersonal
and communication skills; the demonstration of executive behaviors, resourcefulness and
flexibility; broad range of disability related experience; in-depth comprehensive knowledge of
the disability program; strong leadership skills; demonstrated ability to effectively manage
performance at the executive level; and the commitment to achieving national and regional
goals and targets. The Deputy Assistant stated that Complainant was not selected because she
was not one of the top two candidates recommended by the Center Director. She also
indicated that she selected the selectee, a GS-14, Atlanta Management Development Program
(AMDP) Specialist, who was one of the top two candidates recommended by the Center
Director because he had a high level of leadership skills and a wider range of disability
programmatic experience. Furthermore, the Deputy Assistant stated that in 2008, the selectee
participated in the AMDP which provided him a wide variety of GS-14 work assignments.

The AJ indicated that it was undisputed that the selectee had more GS-13 level supervisory
experience than did Complainant and had more GS-14 experience than Complainant.
Furthermore, stated the AJ, it was also undisputed that the selectee participated in and excelled
in the AMDP prior to his selection. The AJ indicated that the selecting official and two other
managerial officials gave credible, unchallenged testimony that the selectee’s experience in the
AMDP was a significant contributing factor in his selection for the position at issue since it
offered participants the opportunity to serve in temporary GS-14 level supervisory positions.
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The AJ stated that Complainant did not apply for the AMDP and did not offer any evidence
indicating that she was prevented from doing so. On appeal, Complainant does not dispute
this.

Complainant also claimed that she was subjected to a hostile work environment due to her EEO
complaint filed against the Center Director. It appears that Complainant raised these matters
concerning her working conditions as background information ultimately leading to the
nonselection at issue. The AJ stated that these matters were subsequently raised in
Complainant’s prior EEO complaints or resolved and did not constitute harassment.
Specifically, the AJ further indicated and we agree that Complainant failed to identify any
actions that had the effect of interfering with her job performance. On appeal, we note that
Complainant raises numerous incidents not related to the instant case but related to the matters
which were the subjects of previously filed EEO complaints that were already decided by the
Agency.

Upon review, we find that Complainant failed to show that her qualifications for the position at
issue were plainly superior to the selectee’s qualifications or that the Agency’s actions were
motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No.
05940058 (November 2, 1995). The AJ stated that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent and no hostile work
environment are supported by substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by
substantial evidence.

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
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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
0120121129

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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

March 20, 2013
Date