Marine V,1 Louvenia S., Aline A., Doretta F., Isabel F., Jutta A., Allegra P., Dominica H., Complainants,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 19, 2017
0520170297-0304 (E.E.O.C. Jul. 19, 2017)

0520170297-0304

07-19-2017

Marine V,1 Louvenia S., Aline A., Doretta F., Isabel F., Jutta A., Allegra P., Dominica H., Complainants, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Marine V,1

Louvenia S.,

Aline A.,

Doretta F.,

Isabel F.,

Jutta A.,

Allegra P.,

Dominica H.,

Complainants,

v.

Nancy A. Berryhill,

Acting Commissioner,

Social Security Administration,

Agency.

Request Nos. 0520170297, 0520170298, 0520170299, 0520170300, 0520170301,0520170302, 0520170303, 0520170304

Appeal Nos. 0720170001, 0720170002, 0720170003, 0120170004,

0720170005, 0720170006, 07201700072, 0720170008

Hearing Nos. 520-2012-00023X, 520-2012-00024X, 520-2012-00021X, 520-2012-00020X

520-2012-00019X, 520-2012-00022X, 520-2012-00014X, 520-2010-00008X, 520-2012-00013X

Agency Nos. NY090666SSA, NY-09-0664-SSA, NY-09-0663-SSA, NY-09-0721-SSA,

NY-09-0671-SSA, NY-09-0659-SSA, NY-09-0665-SSA, NY-08-0933-SSA,

NY-09-0662-SSA

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the Equal Employment Opportunity Commission's (EEOC or Commission's) decision in EEOC Appeal Nos. 0720170001-0120170008 (March 20, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).

At the time of events giving rise to this complaint, Complainants worked as Service Representatives (SR), Teleservice Representatives (TSR) or Senior Case Technicians (SCTs) at the GS-8 grade level. Complainants worked at various Agency offices located throughout New York and New Jersey within its Region 5.

In early 2009, the Agency announced that it would be hiring Claims Representatives (CR) at the GS-5/7 grade level in certain district offices in New Jersey. Complainants, who all worked at the GS-8 level, were willing to accept a downgrade to the GS-7 grade-level if selected because the position offered advancement potential up to the GS-11 level. Complainants also indicated that the Agency previously had placed them on best qualified lists for earlier announced CR positions at the GS-9 level. Each vacancy announcement for the CR position specifically noted that the applicant must pass a written test called the Administrative Careers with America (ACWA) exam, a test designed for entry-level college graduates, in order to be found minimally-qualified and eligible.

In September 2009, Complainants individually filed EEO complaints alleging that the Agency discriminated against them on the basis of age3 when they were not selected for CR positions in New Jersey district offices in May 2009.

Our prior appellate decision affirmed an EEOC Administrative Judge's (AJ's) decision following a hearing. The AJ's decision found in favor of the Complainants, finding that Complainants established that they had been subjected to discrimination based on their age when they were not selected for CR positions under one of the vacancy announcements. The AJ found that no internal employees were among any of the 16 selectees for any of the instant vacancies. In addition, out of the 16 individuals selected, only four were over the age of forty. The AJ determined that the Agency's decision to exclusively use of the ACWA exam, without consideration of relevant work experience and performance, to determine eligibility for the positions in question was a pretext for age discrimination.

In its request for reconsideration, the Agency expresses its disagreement with the previous decision and presents many of the same arguments it raised previously on appeal and before the AJ. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.

In reaching this conclusion, we will briefly discuss some of the Agency's more significant arguments. The Agency contends EEOC did not have jurisdiction to decide this matter because it involved an employment practice administered by OPM (the ACWA exam), making OPM a necessary party in litigation that should be decided by the Merit Systems Protection Board. This argument is misplaced because neither the AJ nor our prior decision found that the ACWA itself was discriminatory. Rather, we found that Complainants' claims center on contentions that the Agency (not OPM), motivated by age discrimination, chose to open the vacancies up to external candidates, chose to use the ACWA as the sole selection vehicle, and chose the cut-off score for those who passed the exam (two of the complainants passed the ACWA but were not interviewed due to their scores). The record reflects that the Agency had the option to use other methods of selection instead of the ACWA exam, which would have taken into account an internal employee's experience, skills and abilities in qualifying for the vacancies, but decided not to do so. Therefore, our prior decision had jurisdiction to consider whether the Agency's actions in designing the selection process at issue was motivated, even in part, by age discrimination.

The Agency also cites to Hazen Paper Company v. Biggins, 507 U.S. 604, 611 (1993), and asserts that the Supreme Court has held that years of service and age are analytically distinct for the purposes of determining liability under the ADEA and there was no statistical basis for our prior decision's conclusion that the disadvantage faced by internal candidates was based upon age discrimination. However, the AJ and our prior decision did not rely upon statistical analysis or a disparate impact theory. Instead, both the AJ and the appellate decision relied upon a mosaic of testimony from Agency officials and coworkers and documentary evidence concerning the Agency's actions which supported the conclusion that the Agency's motives were tainted by age animus. We noted that it was clearly suspicious that all experience, performance, and other qualifications of candidates were disregarded by the Agency in making its selections and that the use of the AWCA exam ended up benefiting younger candidates over a fairly large group of older internal applicants. We also noted that the Agency had no problem adjusting its use of the AWCA exam in order to benefit one younger candidate and did not even consider those older internal applicants who passed the exam. Also, Agency officials used "code" words in their testimony as a basis for their use of the AWCA exam that have been used previously as evidence of age discrimination. There was also ample testimony that the use of the test was intended to and did give an advantage to younger candidates. Finally, we noted that the Agency later decided to recruit college students for remaining positions rather than consider the older applicants who passed the exam. In our prior decision, we concluded that the sum of all this evidence established disparate treatment based age.

Finally, the Agency argues that our decision will have a significant impact on the Agency's hiring practices by creating a preference for internal candidates and stopping federal agencies from using the ACWA test. This argument is factually incorrect at its core. The appellate decision, as shown in the individual relief designated in its Order, only affects the specific complainants not selected under the vacancy announcements at issue. The central finding in this case is not that the AWCA examination is itself discriminatory, but instead that the Agency, in this instance, utilized it intentionally to discriminate against older applicants. The fact that complainants were already employed by the Agency in similar positions to those for which they were seeking to be selected merely shows how qualified they were, and casts suspicion on the Agency's decision to ignore those qualifications.

After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal Nos. 0720170001 - 0720170008 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER

The Agency is ORDERED to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision is issued:

1. The Agency shall provide appropriate remedial EEO training to all responsible management officials involved in this case including at least four (4) hours of training for each supervisor and manager in Region 5 who oversaw the recruitment and selection of Claims Representatives, to include those supervisors and managers involved in the instant matter, whether or not they continue to work at that same facility;

2. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).

3. The Agency shall instate each Complainant to the position of Claims Representative in a mutually acceptable location, with all attendant promotions, benefits, steps, and other increases to which they would be entitled had each been placed in the Claims Representative positions as of the first pay period in April 2009.

The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."

The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its New York/ and or New Jersey facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

July 19, 2017

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainants' name when the decision is published to non-parties and the Commission's website.

2 Appeal No. 0720170007 encompasses Hearings Nos. 520-2012-00014X (Agency No. NY-09-0665-SSA) and 520-2010-00008X (Agency No. NY-08-0933-SSA). On February 25, 2014, the AJ issued an order of consolidation, finding that Hearing No. 520-2010-0008X was related to the instant case.

3 Complainants also alleged that they were subjected to discrimination based on national origin and reprisal. However, the AJ issued a summary judgment decision finding no discrimination on these bases, and they were not considered at the hearing. Complainants did not appeal the AJ's summary judgment decision.

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