01972886
06-09-1999
Edith D. Watson-Lotts, Appellant, v. 340-96-3518X, 340-96-3597X Commissioner, Social Security Administration, Agency.
Edith D. Watson-Lotts, )
Appellant, ) Appeal No. 01972886
) Agency Nos. SSA-754-94,
v. ) SSA-014-95, 95-0432-SSA
) Hearing Nos. 340-95-3924X, Kenneth S. Apfel, )
340-96-3518X, 340-96-3597X
Commissioner, )
Social Security Administration, )
Agency. )
__________________________________)
DECISION
On February 13, 1997, Edith D. Watson-Lotts (appellant) timely appealed
the final decision of the Social Security Administration (agency), dated
January 14, 1997, concluding she had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., In a series of three EEO complaints, appellant had
alleged that agency officials discriminated against her: (1) on the basis
of her race (Black) when, in April 1994, she was not selected for the
position of Hearing Scheduler, GS-5/6; (2) on the basis of her race, and
in reprisal for engaging in prior EEO activity, when, in August 1994, she
was not selected for the position of Lead Legal Processing Clerk, GS-6;
and (3) in reprisal for her prior EEO activity when, in February 1995,
she was not selected for the position of Hearing Assistant, GS-6/7/8.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time this matter arose, appellant (Black) was employed by the
agency as a Lead Processing Clerk, GS-4.<1> Appellant timely applied,
was deemed qualified and was considered for the vacant position of
Hearing Scheduler, GS-5/6. On or about April 29, 1994, another candidate
(Hispanic) was selected. Appellant sought EEO counseling regarding
this selection decision ("Selection No. 1"), and the selecting official
(Caucasian) was interviewed by the EEO Counselor on May 10, 1994.
Subsequently, appellant timely applied, was rated qualified, and was
considered for the position of Lead Legal Processing Clerk, GS-6. On or
about August 5, 1994, another candidate (Black) was chosen ("Selection
No. 2"). The selecting official was the same official involved in
Selection No. 1. In early September 1994, appellant again sought EEO
counseling over her nonselection. Finally, appellant applied for,
was rated as qualified, and was considered for one of three available
Hearing Assistant, GS-6/7/8, positions. On or about February 16, 1995,
three other candidates (two Black and one Caucasian) were selected for
the vacant positions ("Selection No. 3). Again, the same selecting
official made the decision.
The selecting official denied that appellant's race or her EEO
activity played a factor in any of the three selection decisions.
Rather, she explained that she used a matrix system consisting of four
factors--past performance appraisals, years of experience, attendance
and demonstrated abilities--to evaluate each of the candidates for the
positions in question. She added that the element of "demonstrated
abilities" was further defined in terms of each candidate's ability to:
1) carry extra work; 2) be flexible; 3) set priorities; 4) deal with the
public; 5) produce work in a timely manner; 6) assimilate information;
7) SSA experience; and 8) any other relevant factors. The selecting
official testified at length about why the selectees were scored higher
on this matrix and, therefore, considered the best qualified candidates
for the disputed positions. Various other management officials were
consulted, including appellant's first-level supervisor, during the
selection processes and they all concurred with selecting officials
choices and rationale. While conceding that appellant had skills and
experience in a number of areas, the selecting official explained that
she did not get a higher score because of problems with being flexible,
a confrontational and sometime uncooperative attitude, and a history of
being late for several hearings.
Upon learning of her nonselections, appellant filed three formal EEO
complaints with the agency, alleging that the agency had discriminated
and/or retaliated against her as referenced above. The agency accepted
the complaints and conducted investigations. At the conclusion of the
investigations, appellant requested an administrative hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
All three complaints were consolidated for hearing.
On November 21, 1996, following a hearing at which appellant and four
other witnesses testified, the AJ issued a decision from the bench
concluding no discrimination or retaliation had occurred. In that
decision, the AJ found that although appellant established a prima facie
case of race and/or reprisal discrimination, the agency successfully
rebutted any initial inference of discrimination with its articulation
of legitimate, nondiscriminatory reasons for the decision to choose the
selectees for the positions in question rather than appellant. The AJ
went on to hold that appellant failed to meet her burden of proving, by
a preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter were unbelievable or that its actions
were more likely motivated by discriminatory factors. The Commission
notes that the AJ found the testimony of key management witnesses,
including the selecting official, to be credible. These credibility
determinations of the AJ are entitled to deference due to the AJ's
first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
The Commission, after an independent review of the record, found no
significant evidence to contradict the AJ's credibility findings.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision which adopted the AJ's
finding of no discrimination or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 9, 1999
__________________ __________________________________
DATE Carlton M. Hadden, Acting Director
1 The record indicates that in December 1995, appellant was
upgraded to the position of Hearing Office Clerk, GS-6.