Shae M.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019000739 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shae M.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019000739 Hearing No. 490-2017-00182X Agency No. ATL-17-0254-SSA DECISION On November 13, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 17, 2018, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether the Agency properly found that Complainant was not subject to discrimination on the bases of age (46), sex (female), and race (African-American) when, on December 10, 2016, she was not considered for the position of Technical Expert (TE), GS-12 in the Memphis District Office.2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Commission notes there was an additional allegation of hostile work environment based on the same non-selection that was dismissed for failure to state a claim. Complainant raises no issue with the dismissal on appeal, therefore it is not the subject of the instant decision. 2019000739 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Technical Expert, GS-12 at the Agency’s Monroe District Office facility in Memphis, Tennessee since August 2014. Complainant had been with the Agency since February 2005. On March 8, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. Specifically, Complainant contends that she was placed at a competitive disadvantage when management made the decision to place someone in a vacant position that was never advertised as vacant. Complainant states that the failure to follow the normal selection process automatically placed the Selectee at an advantage because he was the only contender for the position. Management was not aware of her interest in moving to the Memphis District Office because Complainant was unaware that there was a vacant position available. Complainant submits that she is more qualified for the TE position because she has more years of service, and because the Selectee previously applied for a TE position and was not selected. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request after Complainant failed to respond to Discovery requests filed by the agency and failed to respond to the AJ’s Order to do so. The AJ remanded the complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Disparate Treatment In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). 2019000739 3 First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, sex, and age, that record evidence supports the FAD’s conclusion that she did not show that the Agency’s reasons were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus. Specifically, management explained that no specific vacancy was filled when the Selectee was assigned to the vacant TE position in the Memphis District Office. There was no vacancy announcement, application period, interview panel, or selection process. The Selectee’s reassignment was based on Agency policy allowing management to reassign employees to non- competitive vacant positions they are qualified for. Agency policy only requires that the reassignment be based on a bona fide decision based on legitimate management considerations promoting efficiency of service. In the instant matter, the record reflects that management created a new, non-competitive position for the Selectee rather than filling an existing vacancy due to personal managerial issues. The selection here was not about an assessment of Complainant’s qualification for the position, but about moving the Selectee from one position to another in an effort to manage issues in his supervisory chain. With respect to any argument by Complainant that she was entitled to the TE position in the Memphis District Office because she had more experience than the Selectee, we note that the Commission has found that greater years of experience does not necessarily make one candidate more qualified for a position than another. Morgan v. Dep’t of the Treasury, EEOC Appeal No. 0120073389 (Sept. 14, 2010) (citing Ropelewski v. U.S. Postal Serv., EEOC Request No. 05940313 (Nov. 23, 1994)). Generally, an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of unlawful discriminatory motivation in the instant matter. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the FAD properly held that Complainant did not establish that she was discriminated against on the bases of race, sex, and age when she was not selected for the position of Technical Expert. 2019000739 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2019000739 5 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 August 19, 2020 Date