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

Equal Employment Opportunity Commission

Mar 14, 2013

0120121383 (E.E.O.C. Mar. 14, 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. 0120121383

Hearing No. 510-2009-00053

Agency No. NY-09-0500-SSA

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s January 10, 2012 final order concerning his 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative at the Agency’s Hato Tejas Branch Office in Bayamon, Puerto Rico. On
January 5, 2009, the Agency issued a vacancy announcement for a TeleService Center (TSC)
Supervisor position. Complainant applied for the position and was listed on one of the Merit
Promotion Certificates of Eligibles. The certificate was forwarded to the selecting official
(SO). SO reviewed the candidates’ applications and solicited feedback from their supervisors
and managers. On April 7, 2009, Complainant learned that he had not been selected.

On July 13, 2009, Complainant filed a formal complaint alleging that the Agency discriminated
against him in reprisal for prior protected EEO activity when he was not selected for the TSC
Supervisor position. At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a
hearing December 14 and 15, 2010, and issued a decision on December 23, 2011.

0120121383

2
In her decision, the AJ initially assumed arguendo that Complainant had established a prima
facie case of reprisal discrimination and determined that the Agency had articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. Specifically, SO testified that the
TSC Supervisor must supervise Teleservice Representatives and Technical Assistants which
required a candidate with a wide range of experiences within the TSC environment. Further,
SO testified that the essential qualities for a successful TSC Supervisor were excellent
communication and interpersonal skills; organizational skills; knowledge of Agency programs;
and good training skills. SO added that she considered the best experience for developing
those skills was working in the TSC environment. SO noted that during the selectee’s 17-year
tenure within the TSC, she worked as a Teleservice Representative, a Technical Assistant, and
as a Claims Representative in the Immediate Claim-Taking Unit. In addition, during her
tenure as a Technical Assistant, the selectee identified training needs and developed training
for different regions, including the U.S. Virgin Islands. By contrast, Complainant had only
four years of experience in the TSC environment and then only as a Teleservice
Representative.

Complainant argued that he was better qualified based on his experience processing disability
claims and applications. The AJ found that this experience did not make him better qualified
than the selectee since the employees whom the TSC Supervisors supervise have only limited
involvement in liability issues. In any event, SO testified that the selectee had been trained on
disability issues. As a result, the AJ concluded that Complainant had not established that the
Agency’s reasons for not selecting him were pretextual. Accordingly, the AJ found that
Complainant had not been retaliated against as alleged. The Agency subsequently issued a
final order adopting the AJ’s decision. On appeal, Complainant only argues that the Agency
erred in issuing him the final order by email.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

As an initial matter, the Commission shall address Complainant’s objection to the Agency’s
issuance of the final order by email. The Commission notes that there is no provision in the
0120121383

3
Commission’s regulations for official service of final agency action by email. When
Complainant protested, the Agency attempted to mail Complainant the final order; however, it
appears that it was returned as unclaimed. The Commission finds that Complainant has not
shown that he was harmed in any way by the Agency’s form of service. Accordingly, the
Commission discerns no basis to sanction the Agency.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v.
Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). The prima facie inquiry may be dispensed with in this case, however, since
the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 531) U.S.
133.143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Upon review, the Commission finds that the AJ's findings of fact are supported by substantial
evidence. The Commission finds that the Agency has articulated legitimate, non-retaliatory
reasons for Complainant’s non-selection. Specifically, SO testified that after reviewing all of
the candidates’ applications, she selected the selectee based on her 17 years of extensive
experience in the TSC environment, her background and education in Human Resources and
management, and the awards she had received for her performance. Hr’g Tr., Vol. 1, 108-09,
141. SO further testified that the TSC environment is unique and having broad experience and
knowledge of the culture would be advantageous to the TSC Supervisor position. Id. at 109.

In addition, the selectee took initiative and designed, coordinated, and conducted training for
staff on different topics; performed security and workload audits; and exhibited good
interpersonal and leadership skills. Hr’g Tr., Vol 1, at 112-14. Complainant had developed
training; however, it had been assigned by a supervisor or he had been detailed to conduct the
training. Id. at 174. The selectee had been identified as someone who fellow employees
would go to for assistance regarding complex and difficult situations or for clarification. Id. at
119, 125. Finally, SO testified that the selectee was very polite, treated everyone with
respect, and could explain difficult instructions in a simple way. Id. at 126. On the other
hand, SO was aware that Complainant had some difficulty dealing with people. Id. at 171-72.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
0120121383

4
One way Complainant can establish pretext is by showing that his qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
This is simply one method and is not the only way Complainant may establish pretext as to his
non-selection claim.

Complainant contended that he was better qualified because he had experience as a trainer in
the TSC and because he was better prepared than the selectee as to training, dealing with
peers, and dealing with management. A review of Complainant’s and the selectee’s
applications does not reveal that Complainant's qualifications for the position were plainly
superior to those of the selectee. The record establishes that SO chose the selectee because she
believed that the selectee was better qualified and would be better equipped to meet the
Agency's needs. In the absence of evidence of unlawful discrimination or reprisal, the
Commission will not second guess the Agency's assessment of the candidates' qualifications.
Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. The record and facts gleaned at the
hearing fail to prove any evidence purporting to show that the selection process or the
Agency’s selection decision was tainted by retaliatory animus or that the reasons articulated by
the Agency were pretext to hide unlawful reprisal. As a result, the Commission finds that
Complainant was not retaliated against as alleged.

CONCLUSION

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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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 (Nov. 9, 1999). All requests and arguments must be
0120121383

5
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:

______________________________ March 14, 2013
Carlton M. Hadden, Director Date
Office of Federal Operations