0120114037
01-31-2013
Donna C. Gueren, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Donna C. Gueren,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120114037
Agency No. NY-10-0875-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 18, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Post Entitlement Technical Expert (PETE), GS-10, at the Agency's Northeastern Program Service Center in Jamaica, New York.
On November 23, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and religion (Catholic) when:
on August 2, 2010, she learned that she was not selected for the Claims Authorizer (CA) position, advertised under Vacancy Announcement Number (VAN) SJ-345228-10ROII-11.
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On July 18, 2011, the Agency issued the instant final decision, finding no discrimination. Without addressing the prima facie analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the Agency found that the twenty-one selectees were selected for the subject positions because they were best qualified.
The Operations Manager of Division 4, also Complainant's second-line supervisor, was one of the four selecting officials for the CA position. The record reflects that 104 candidates, including Complainant, were considered qualified for the subject position and referred to the selecting official for consideration. The second-line supervisor stated that the subject position is highly technical and requires strong decision-making skills. The second-line supervisor stated that she and the other three selecting officials followed the following criteria while assessing the candidates: ability to learn new procedures and systems, ability to resolve routine and complex issues in a timely manner, decision-making skills, ability to manage workloads and priorities, initiative, interpersonal and communication skills, reliability, and performance on specific details.
The second-line supervisor stated that there were no interviews. She and the other three selecting officials reviewed recommendations and feedback from the candidates' managers, and "we discussed every name on the list and separated those with the strongest recommendations for further consideration. We discussed those candidates further and then came to a consensus as to who were the top, most qualified candidates." The second-line supervisor stated that she and the other three selecting officials selected 21 candidates because "they were all highly recommended and possessed the best skills for the Claims Authorizer position."
The second-line supervisor stated that Complainant was not selected because she was not one of the best qualified candidates. The second-line supervisor stated that Complainant was recommended for the subject position by her first-line supervisor. The second-line supervisor stated according to the first-line-supervisor, Complainant had a strong technical and analytical skills, excellent writing skills and did a fine job reviewing an employee's work under a performance assistance plan. The second-line supervisor stated, however, the first-line supervisor "had the opinion that [Complainant] would be able to learn the CA job, although at a slower pace than others would. [First-line supervisor] could not recommend her more highly because [Complainant] frequently does not complete her work in a timely manner; thus, the managers often have to follow up and micromanage her to ensure that priorities and other workloads get done. It is noted that [Complainant sometimes gets overwhelmed when presented with multiple tasks and she can be easily distracted from the task at hand...although she is approachable as a team leader, [Complainant] tends to be slow in answering questions from her staff or getting back to them with a timely response."
Further, the second-line supervisor stated that during the selection discussions, she and the other three selecting officials did not make any comments about Complainant's sex and religion.
The Operations Manager (OM) of Division 3 was one of the four selecting officials. OM stated that Complainant's first-line supervisor recommended her for the subject position "but not as highly as some of the candidates that she had comments about. If I recall correctly, there were some concerns about the timeliness of [Complainant's] work. There were no comments about her sex, religion, parental and marital status. [Complainant] was not selected because we had other candidates we deemed were more worthy based on their recent body of work. The selection was not based on anyone's sex, religion, parental and marital status."
Another Operations Manager (OM2) stated that he was one of the four selecting officials. OM2 stated that he and the selecting officials discussed the candidates on the list. OM2 stated that Complainant received a recommendation from her first-line supervisor but "not a 'highly recommend.' Our discussion was on the candidates that received a 'highly recommend' recommendation...there were no comments about anyone's sex, religion, parental and marital status."
Complainant's first-line supervisor stated that she recommended Complainant for the subject position but did not make any comments about her religion or sex. The first-line supervisor further stated that she and the second-line supervisor discussed Complainant's performance but did not discuss her religion and sex. The first-line supervisor stated that while Complainant has strong analytical skills and writing skills, the major issue was the timeliness of her work product. Specifically, the first-line supervisor stated that a significant amount of Complainant's work was reassigned and "additionally she did not prepare monthly reports timely. This was an on-going issue."
With respect to Complainant's allegation that she was not selected for the subject position because of her sex and religion and that the first-line supervisor favored one of the 21 selectees, the first-line supervisor denied it. Specifically the first-line supervisor stated "I do not favor [named selectee], nor do I favor one sex over the other. I provide feedback; I do not make the selections."
Complainant, on appeal, argued that the Agency erred finding no discrimination. For instance, Complainant argued that she was more qualified than the 21 selectees because she has more than fifteen years of experience and received numerous performance awards for her proficiency. Complainant further argued that she "also has served the Agency in a variety of positions as SPIKE instructor, benefit authorizer mentor, EEO Counselor and the Federal Women's Program Committee member. She also worked with the Agency in re-writing the benefit authorizer training package..." Furthermore, Complainant argued that it was because of her first-line supervisor's bias "which the selection officials based their decisions on, which prevented the Complainant from getting her deserved promotion."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, has provided no persuasive arguments indicating any error in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
January 31, 2013
__________________
Date
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0120114037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114037
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