0120060831
11-06-2007
Earnestine Jones, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Earnestine Jones,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200608311
Hearing No. 340-2002-03665X
Agency No. 01-0550-SSA
DECISION
Complainant filed an appeal with this Commission from the September 30,
2005 agency decision which implemented the September 13, 2005 decision
of the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against her on the
basis of race (African American) and reprisal for prior protected EEO
activity when on June 20, 2001, she was not selected for the position of
a GS-9 Claims Representative under Vacancy Announcement No. SSA-01-137.
At the conclusion of the investigation, complainant timely requested a
hearing which was held before an EEOC AJ.
In her decision, the AJ ruled on complainant's request for sanctions
against the agency and she drew an adverse inference against the agency
for what she found were inadequate responses to complainant's request
for production of documents (RFP). The AJ noted that in the agency's
response to complainant's RFP, the agency stated that it had produced only
documents "retained by" it. The AJ further noted that complainant sought
counseling on April 24, 2001, before the selections were effective in June
2001. The AJ also noted that one of the reasons the agency articulated
for its failure to select complainant was that it had received complaints
from the public about her. The AJ found that the agency was obligated
to retain complaints made against all three selectees and complainant.
The AJ also noted that the agency provided no details regarding its search
for such documents in other files, including those which may have been
personally maintained by the selectees. The AJ accordingly drew the
adverse inference that there was at least one written complaint in the
San Diego Field Office from the public against each of the selectees and
that there were no written accolades in the San Diego Teleservice Center
from the public regarding either Selectee-1 and Selectee-2, aside from
any in the Report of Investigation (ROI), and that there was at least one
complaint from the public in the 7B files of Selectee-1 and Selectee-2.
The AJ also drew the adverse inference that there was no documentation,
aside from what existed in the ROI, to support management's contention
that Selectee-3's work skills were at a higher level of performance than
complainant's work skills.
The AJ noted that a party's failure to preserve and produce relevant
evidence was governed by 29 C.F.R. � 1614.109(f)(3) which provides
that when an agency against which a complaint is filed or its employees
fail without good cause shown to respond fully and in a timely fashion
to requests for documents or records, the AJ shall, in appropriate
circumstances, draw an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide the
requested information. The AJ reasoned that to rule otherwise would
encourage federal agencies to purge records which the agencies are
legally obligated to maintain so as to defeat a discrimination complaint.
The AJ noted that retention of documents was necessary so that complainant
was provided with an opportunity to show that the articulated reason is
pretext once the agency has articulated a legitimate, nondiscriminatory
reason for its employment decision.
Regarding complainant's claim of nonselection, the AJ found that
complainant established a prima facie case of race and reprisal
discrimination, noting that complainant applied for and was qualified for
the position and that the three selectees were not of complainant's race.
The AJ also noted that complainant had filed a discrimination complaint
months before her nonselection, that it was pending at the time of her
nonselection, and that the Selecting Official was aware of complainant's
pending complaint. The AJ concluded that the agency had articulated
legitimate, nondiscriminatory reasons for its selections and that
complainant failed to show that the agency's reasons were pretextual.
The AJ found that the three selectees, although similarly qualified,
had slightly better experience handling complex matters and did not
engender complaints from co-workers or the general public. The AJ also
found that the three selectees were substantially equally qualified
as measured by objective length of experience with the agency and were
substantially similar in education level. The AJ noted that Selectee-1
had been detailed to the position of Technical Assistant and was used as
a resource for resolution of difficult questions or problems, was a team
player who worked well with management and her co-workers, and was good
at dealing with the public. Regarding Selectee-2, the AJ noted testimony
that she had strong technical skills, that she was a quick learner who
was efficient in processing workloads, and that she was good at dealing
with the public. Regarding Selectee-3, the AJ noted that she was a top
producer in her unit, had outstanding interview skills, got along well
with co-workers and the public, was flexible, was able to multitask,
and volunteered to perform extra duties. The AJ further concluded that
despite the adverse inferences drawn against the agency's position,
complainant failed to present sufficient evidence to prove that the
agency did not select her for prohibited reasons.
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 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.
Upon review, we find that the AJ's decision was based on substantial
evidence of record. Complainant has not shown by a preponderance of
the evidence that the agency's real reason for not selecting her was
discriminatory. The Commission finds that complainant has not shown
by a preponderance of the evidence that the agency was motivated by
discriminatory animus when it failed to select her. Even if the
agency lied about complainant's interactions with the public and
her productivity, complainant must link the lie or its creation to
prohibited discrimination and she has not done so. Further, complainant
has not demonstrated that her qualifications are plainly superior to
those of the selectees. Under these circumstances, an employer has
the discretion to choose among equally qualified candidates. Regarding
complainant's argument concerning the adverse inference drawn by the AJ,
the Commission finds that the AJ drew an appropriate adverse inference
against the agency in this case.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 6, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120060831
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036