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

Equal Employment Opportunity Commission

Sep 12, 2013

0120113810 (E.E.O.C. Sep. 12, 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. 0120113810

Agency Nos. ATL-10-0462-SSA, ATL-10-0655-SSA

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated July 7, 2011,
finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision.

BACKGROUND

The record indicates that Complainant filed two complaints which were subsequently
consolidated for processing.

Agency No. ATL-20-0462-SSA:

In this complaint, filed on April 30, 2010, Complainant alleged discrimination based on
disability (dwarfism) and in reprisal for prior EEO activity when:

(1) Prior to and including March 2010, he was allegedly subjected to ongoing and
continuous harassment in the following terms and conditions of his employment
resulting in a hostile work environment when:

a. Management required him to justify the length of his calls;
b. Management required him to justify the frequency of his restroom visits;
c. He was not given credit for callers who requested to speak with his
supervisor to provide complimentary remarks on his service, knowledge,
accessibility, empathy, and professionalism;
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d. His manager rated him low on the questionnaire submitted to her by the
selecting official for the promotional opportunity of Benefit Authorizer for
which he applied;
e. Management brings up “little digs” that offend him;
f. Management has labeled him incorrectly as combative and unapproachable;
and
g. His manager gave him an error report for an incident (date unspecified)
when he placed a caller on hold because he was suffering from bronchitis,
losing his voice, and had a choking spell.

(2) He was not selected for a promotion for the Legal Administrative Specialist (Benefit
Authorizer) position, which was advertised under Vacancy Announcement Number
(VAN) SB-316848-10-PD.

Agency No. ATL-10-0655-SSA:

In this complaint, filed on July 2, 2010, Complainant alleged discrimination based on race
(White), disability, and in reprisal for prior EEO activity when he was subjected to harassment
in that:

(3) On May 4, 2010, and May 10, 2010, he did not receive any type of performance
award;

(4) On March 24, 2010, he was not selected for a Benefit Authorizer position; and

(5) On April 9, 2010, he received a satisfactory performance review during a six-month
assessment, but he failed to receive the praise he deserved for his work
performance.

The record indicates that the Agency dismissed claims (4) and (5) due to untimely EEO
Counselor contact, for failure to state a claim, and/or for stating the same claim that was
pending before the Agency, pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (2). After
completion of the investigation of the complaints, Complainant did not request a hearing. The
Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory
reasons for its actions, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

Initially, we note that the Agency dismissed claims (4) and (5). Upon review, we find that
claim (4) is properly dismissed for stating the same claim described in claim (2), i.e., the
nonselection to the Benefit Authorizer position, which had been accepted for investigation. 29
C.F.R. § 1614.107(a)(1). We also find that the Agency properly dismissed claim (5) because
Complainant did not contact an EEO Counselor regarding the alleged April 9, 2010
performance review until June 1, 2010, which was beyond the 45-day time limit set by the
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regulations. 29 C.F.R. § 1614.105(a)(1). On appeal, Complainant does not provide adequate
justification to warrant an extension of the applicable time limit for contacting an EEO
Counselor.

Turning to claims (1) – (3), as these claims are the subject matter of 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. (November 9, 1999) (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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination on all bases, we find that the Agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. At the time of the alleged incidents,
Complainant was a Teleservice Representative (TSR), GS-8, in the Agency’s Birmingham
Mega-Teleservice Center, in Birmingham, Alabama.

Complainant’s immediate supervisor (S1) and management denied the incidents described in
claims (1)a, b, e, and f. With regard to claim (1)c, S1 indicated that she documented
complimentary calls from Complainant’s clients and provided him copies of those. With
regard to claim (1)d, S1 stated that she rated Complainant in several categories on a scale of
one to four on each of the questions on the recommendation form for the position at issue.
Specifically, S1 indicated that she gave Complainant either twos or threes, i.e., “satisfactory”
or “excellent.” With regard to claim (1)g, S1 indicated that on March 17, 2010, she issued
Complainant an error report because he placed his caller on hold and sat idly without checking
the caller’s information. Although Complainant claimed that he did so because he was choking
at that time, S1 stated that S1 was performing a remote service observation during the incident
and did not observe him chocking either on the call or when she went to his workstation.

With regard to claim (2), the Selecting Officer (SO) for the Benefit Authorizer at issue stated
that 144 candidates, including Complainant, were referred to him as eligible for consideration.
The SO indicated that Complainant was also on the Best Qualified List (BQL) for the position
at issue. After receiving the BQL, the SO solicited recommendations from candidates’
supervisors, and he only considered “highly recommended” candidates by their supervisors.
The SO stated that Complainant, however, was not “highly recommended” by S1 and, thus, he
was not considered for selection. The SO indicated that he ultimately selected 30 candidates
for the position. S1 stated that she completed the questionnaire on the recommendation form,
as described in claim (1)d, and indicated in the form that Complainant was “recommended”
instead of “highly recommended” for the position at issue, and S1’s supervisor concurred with
that recommendation.
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On appeal, Complainant contends that the Agency failed to provide him with S1’s
recommendation form prior to its appeal. However, we find no harm in the Agency’s action in
this case since S1, in her sworn affidavit during the investigation, clearly described what she
indicated in that recommendation form. We see no new evidence in the actual
recommendation form. Complainant also contends that S1 also completed a recommendation
form for another identified applicant for the position at issue. Although S1 gave the same sum
of rating score of 26 for both Complainant and the identified applicant, the identified applicant
was given “highly recommended” by S1. However, Complainant does not provide any
evidence that the identified applicant was a similarly situated individual, i.e., with performance
issues and low service observation accuracy. Furthermore, Complainant failed to show that
his qualifications for the position were plainly superior to the selectees’ qualifications or that
the Agency’s actions were motivated by discrimination. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995). Although Complainant contends on
appeal that his third level supervisor, who was previously involved in his prior EEO
complaint, improperly influenced the SO’s selection process, he provides no evidence other
than mere assertions to support his argument.

With regard to claim (3), S1 stated that in May 2010, she recommended her employees for the
three types of awards. S1 indicated that she, however, did not recommend Complainant for
any of the awards because of his performance issues and his less than 90% service observation
accuracy. S1 stated that from October 2009, to May 2010, Complainant had 33 service
observations. Complainant received “needs improvement” instead of “satisfactory”
assessment on several occasions resulting in less than 90% service observation accuracy. We
note that Complainant does not dispute any specific assessment other than the March 17, 2010
assessment, described in claim 1(g).

With regard to his claim of harassment, we find that Complainant failed to establish the
severity of the conduct in question or that it was related to any protected basis of
discrimination. We also find that Complainant failed to show that he was treated less
favorably than a similarly situated employee under similar circumstances. It is noted that in
this decision we do not address whether Complainant is a qualified individual with a disability.
Furthermore, we note that Complainant has not claimed that he was denied a reasonable
accommodation. Based on the foregoing, we find that Complainant failed to show that the
Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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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
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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

September 12, 2013
Date