0120112950
06-25-2013
Melba Heasley, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Melba Heasley,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112950
Hearing No. 570-2008-00149X
Agency No. 03-0089-SSA
DECISION
On May 23, 2011, Complainant filed an appeal from the Agency's April 25, 2011 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) erred in determining that a selecting official's personal familiarity with the selectees and unfamiliarity with Complainant constituted a legitimate, nondiscriminatory reason for Complainant's nonselection.
2. Whether there was substantial evidence to support the AJ's finding of no discrimination regarding Complainant's nonselection.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Civil Action Assistant, GS-6, at the Office of Hearings and Appeals, Court Case Preparation and Review, in Falls Church, Virginia. The two branch chiefs in the Court Case Preparation and Review division were each looking to hire two Court Records Assistants. Court Records Assistants process court cases; they receive, process, assemble, and dispose of all cases at the court level. They also maintain records; prepare memoranda reports; and organize documents, material, and data.
First Vacancy Announcement
In February 2002, the Agency posted a vacancy announcement (Y-496) for four GS-6/7 Court Records Assistant positions. Report of Investigation (ROI), Exhibit (Ex.) 11, at 1. Applicants would be rated based on their experience in:
* Reviewing cases or case-related materials for accuracy and completeness;
* Controlling or screening of cases and case-related materials, such as court or hearing transcripts, correspondence concerning a case, evidence, or record;
* Associating or incorporating relevant materials with cases or files;
* Using a computer in preparing correspondence or case-related materials
Applicants would also be ranked, in part, based on their job-related training, education, and awards. Id.
Complainant applied for these positions and was placed on the well-qualified list, along with three other candidates. No interviews of the candidates were conducted.
First Round of Selections
One of the branch chiefs (Branch Chief 1) was relatively new to the job and initially selected only one of the candidates on the well-qualified list. She based her selection on her "personal knowledge" of the selectee and the fact that she had worked with him. Hearing Transcript, at 55. In explaining why she had chosen the selectee, Branch Chief 1 felt that the selectee was "very responsible and very responsive." Id. at 56.
[H]e had a very heavy workload that he stayed on top of. . . . [H]e consistently helped other people with their workloads when they were getting behind. He was always one that you could go to if you had a case that would have to get out that day . . . .
Id.
"I knew [the selectee's] work capabilities, and so I selected [the selectee]. I obviously wasn't sure about the other three candidates." Hearing Transcript, at 75.
The other branch chief (Branch Chief 2) was Complainant's second-level supervisor, and she did not select anyone at all. Both branch chiefs requested to repost the vacancy announcement to get a larger applicant pool.1
Second Vacancy Announcement and Selections
When the Agency reposted the vacancy announcement, Complainant again was placed on the well-qualified list. This time, the well-qualified list included one additional candidate. This new candidate was selected by Branch Chief 1.
In explaining the selection, Branch Chief 1 testified that she had previously worked with the selectee on past special projects. Hearing Transcript, at 77.
[The selectee] knew what she was doing. She was on top of her work. She was very bright. And she understood a lot of things. And she was always trying to learn more and figure out what was going on to understand the process better. . . . [I]f you asked her to do something, she would get it done for you right away, so that you didn't have to keep going back to her on it. Id. 59.
Branch Chief 1 testified that she "looked at how [the applicants] were performing in their current job, because . . . it gives me an inkling as to how they're going to perform the next job." Id. at 65.
Branch Chief 1 did not recall why she did not select the other people on the well-qualified list. Id. at 57. She did not remember Complainant's application or why she did not select Complainant. Id. at 60.
Branch Chief 2, who, as noted above, was Complainant's second-level supervisor, selected someone other than Complainant. Even though the selectee had previously been on the well-qualified list for the first vacancy announcement, Complainant's second-level supervisor explained that she had passed over the selectee the first time because she had not had any interaction with the selectee at that time. Id. at 115. But in the interval between the first and second vacancy announcement, she had become familiar with the selectee's "work ethics." Id. at 97.
She was given assignments by me. She handled them well, timely. Initiated more work, was willing to do more work. So those were all good traits. And she was able to identify and read printouts, and request proper folders as needed. Id. at 97.
. . . .
[I]n my second time when she was on the well-qualified list, I was able to identify her as the person who I had recently started working with. And showed me and demonstrated that she would be a good candidate for the job, and that she would do well in the job. Id. at 115
Complainant's second-level supervisor did not choose Complainant because she believed that Complainant would not be able to do the job:
[Complainant] was marginally-minimally satisfactory, . . . and minimally understood the whole scope of her job. So, if I put her in a position where she barely understood how to do her current job, she wouldn't be able to do the other job as a Court Record Assistant, which was more technical and more demanding. Id. at 98.
The fourth position was filled by a lateral transfer who was not on the well-qualified list.
EEO Complaint
On November 26, 2002, Complainant filed an EEO complaint, alleging, in relevant part, that the Agency discriminated against her on the basis of age (73) when:
1. she was not selected for the position of Court Records Assistant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ issued summary judgment in favor of the Agency, which Complainant appealed to the Commission. Upon review, the Commission remanded the matter back to the AJ for a hearing.2 The AJ held a hearing and issued a decision on March 31, 2011.
AJ's Decision
The AJ first determined that Complainant established a prima facie case of age discrimination in that she was 73 years old; the Agency did not select her and instead selected candidates who were substantially younger in their 20s and 30s.
The AJ found that the two Branch Chiefs articulated legitimate, nondiscriminatory reasons for their actions. Branch Chief 1 testified that she chose the first selectee because she had previously worked with him and had personal knowledge of his professional abilities, particularly his abilities to handle a large workload and finish time-sensitive assignments. Branch Chief 1 testified that she also chose the second selectee because she had previously worked with her and felt she would get things done right away.
As for Branch Chief 2, she explained that she chose the selectee after becoming familiar with the selectee's work, following the first vacancy announcement. Prior to that time, Branch Chief 2 did not know her and did not have an opinion of her work. But afterwards, she was able to observe the selectee's work, and determined that the selectee handled her assignments in a timely manner, was willing to do more work, and was able to identify and read printouts, and request proper folders as needed.
Branch Chief 2 testified that she did not select Complainant because she did not feel that Complainant was capable of filling the position. As Complainant's second-level supervisor, Branch Chief 2 testified that she had already modified Complainant's assignments so that she had a lighter workload compared to her other colleagues by processing less time-sensitive remand orders in the least active jurisdictions. Branch Chief 2 felt that Complainant could not handle a heavier workload because she was disorganized, her assignments were not processed properly, she did not have an understanding of reading data, or reading orders.
To show that these reasons were pretexts to mask an age-related motive, Complainant maintained that all the objective, documentary evidence showed she was an outstanding employee. Complainant noted that her evaluations prior to the arrival of Branch Chief 2 had been outstanding for years, and that she had received awards. During the tenure of Branch Chief 2, she received satisfactory performance evaluations, and there had never been a single documented instance of a deficiency noted by any of her first-level or second-level supervisors. Complainant testified that her desk was not disorganized; rather, there was simply no room or storage space available to place all of the case folders and documents.
Complainant also testified that Branch Chief 2 had remarked to her about her retirement, and treated Complainant improperly by throwing down Complainant's files from her desk.
The AJ found that Complainant did not sufficiently establish pretext. First, the AJ found that one of Complainant's first-level supervisor corroborated Branch Chief 2's negative characterization of Complainant's workload and work performance. Second, the AJ found credible Branch Chief 2's testimony that it was her practice to verbally counsel employees instead of issuing written documentation. Both Branch Chief 2 and Complainant's first-level supervisor testified to verbally discussing with Complainant her performance.
Finally, the AJ found that Complainant did not demonstrate pretext by showing that her qualifications were plainly superior to the selectees. Although Complainant had more years of experience, the AJ found that this did not automatically render her more qualified. The AJ concluded that Complainant failed to establish that the Agency discriminated against her on the basis of age when it did not select her.
The Agency subsequently issued a final order, adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination based on age.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in concluding that Branch Chief 1 articulated a legitimate, nondiscriminatory reason for choosing the two selectees over Complainant. At the hearing, Branch Chief 1 admitted that she did not remember Complainant's application and could not remember why she did not select her. The only thing the Branch Chief 1 articulated was that she worked with the two young selectees but had not worked with Complainant.
Complainant maintains that this is not a legitimate reason to meet the Agency's burden of production. What is required is for Branch Chief 1 to compare the selectees' credentials to Complainant's, as they relate to the relevant factors listed in the vacancy announcements. In other words, Complainant argues, Branch Chief 1 should have compared the following abilities and proficiencies between the selectees and Complainant:
* review cases or case-related materials for accuracy and completeness;
* control or screen cases and case-related materials, such as court or hearing transcripts, correspondence concerning a case, evidence, or record;
* associate or incorporate relevant materials with cases or files;
* use a computer in preparing correspondence or case-related materials.
Branch Chief 1 never offered any discussion about these factors, and she did not attempt to compare the selectees' credentials to Complainant. Complainant maintains that nowhere in the vacancy announcement was "experience with the selecting official" articulated as a relevant selecting factor. Therefore, Branch Chief 1 should not be able to rely on it as a legitimate, nondiscriminatory reason.
In addition, Complainant maintains that she established pretext by showing that her qualifications were plainly superior to the selectees:
* she received outstanding evaluations every year prior to the arrival of Branch Chief 2;
* she received awards for her performance;
* she has taken graduate level courses;
* she had worked in the office longer than the selectees and was much more familiar with policies and procedures
* the joint assessment panel gave Complainant a higher score on the well-qualified list compared to the selectees.
ANALYSIS AND FINDINGS
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. 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.
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 EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Agency's Burden of Production
To prevail in a disparate treatment claim, 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 must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14.
The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "'[T]he defendant must clearly set forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 254-255).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); Hicks, 509 U.S. at 519 (1993).
On appeal, Complainant contends that Branch Chief 1 failed to meet the Agency's burden of production, as articulated by the U.S. Supreme Court in Hicks and Burdine. According to Complainant, this burden requires agencies to articulate what specific characteristics, experiences, qualifications, or other criteria were examined by the selecting official in comparing the complainant to the selectee. Here, according to Complainant, Branch Chief 1 failed to meet this burden because she only testified that she chose the selectees due to (1) her personal familiarity with them (2) her belief that they were competent and responsible workers; and (3) her unfamiliarity with Complainant.
Upon review, we find that there was substantial evidence in the record to support the AJ's finding that, in this circumstance, "personal familiarity" could be a legitimate, nondiscriminatory reason for the selections. In the past, there have been exceptional circumstances where the Commission has found "personal familiarity" to constitute a legitimate, nondiscriminatory reason for selecting certain people over others.
For example, in Franklin v. Dep't of Army, EEOC Appeal No. 01860606 (July 28, 1987), 13 selecting officials had to consider a total of 382 candidates on the best qualified list. The selecting officials testified that, because there were 382 candidates to select from, they decided to select only those candidates with whom they were personally familiar, or with whom the other selecting officials were personally familiar. Of those candidates that they were personally familiar with, they selected only those candidates that they believed were competent and had worked hard in their previous positions with the Agency. The Commission in Franklin found the explanation to be a legitimate, nondiscriminatory reason, in light of the extraordinary number of candidates to consider.
In Linsey v. Dep't of Air Force, EEOC Appeal No. 01893902 (Dec. 14, 1989), the selecting official testified that personal familiarity with the selectee's work was the determining factor in the selection, where both the complainant and the selectee appeared to be equally qualified. Again, the Commission found this to be a legitimate, nondiscriminatory reason.
Here, there was substantial evidence indicating that Branch Chief 1 was limited in the information she was allowed to examine to determine who the stronger candidate was in this process. All applicants wrote in essay-form how their currents jobs involved:
* reviewing cases or case-related materials for accuracy and completeness;
* controlling or screening cases and case-related materials, such as court or hearing transcripts, correspondence concerning a case, evidence, or record;
* associating or incorporating relevant materials with cases or files;
* using a computer in preparing correspondence or case-related materials.
The applicants' answers were qualitative, rather than quantitative, in nature. There was no quantitative indication of how quickly applicants reviewed cases compared to others, nor could a selecting official readily discern the typical workload faced by each applicant.
In addition, a selecting official would not be able to gleam much from the evaluation and recommendation forms because at the time, managers were limited to checking off "satisfactory" or "unacceptable" for the former, and "recommend" or "does not recommend" for the latter.
No interviews were conducted, and the National Labor Agreement prohibited "the selecting official from gathering other candidate information once the well qualified list has been established except through the selection interviews, recontacting the assessment panel and/or supervisory recommendation check off sheets. . . . Selecting officials must not solicit or accept recommendations from any supervisor or management officials . . . through any other means." ROI, Ex. 29.
In light of the circumstances that made it difficult to assess the quality of the applicants, we find the explanation of Branch Chief 1, that she selected those applicants who she was personally familiar with and thought were good workers (and did not select Complainant because she was personally unfamiliar with her), to be a legitimate, nondiscriminatory reason.
Next, we determine that there was substantial evidence in management's sworn testimony to support the AJ's finding of no pretext. Regarding whether Complainant was clearly superior to the selectees, we note that the joint assessment panel gave the maximum score to all candidates in terms of experience (50 points). Where there was a minor difference in points was in the areas of training and self-development, where the newer applicants may not have had enough time on the job to enroll in as many job-related courses or training sessions as Complainant had. The AJ was free to credit the testimony of Complainant's first and second-level supervisors that Complainant was perhaps not the fastest or most reliable of workers, despite her longer years of experience and education.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, adopting the AJ's finding of no discrimination on the basis of age.
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
__6/25/13________________
Date
1 Branch Chief 1 wrote to human resources: "I would like to re-post to expand the pool of available applicants." Branch Chief 2 emailed: "After carefully reviewing the qualified list . . . I have decided to re post the position. There were very few candidates listed and cannot make a [in]formed decision on the best qualified individual to perform the job." ROI, Ex. 23.
2 See Heasley v. Social Security Admin., EEOC Appeal No. 0120054600 (July 24, 2007).
3 Furthermore, we note that the number of years of experience, alone, is insufficient to establish that someone's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011).
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0120112950
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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