0120122169
09-18-2012
Suzanne T. Daniels, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Suzanne T. Daniels,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122169
Agency No. DAL-11-0822-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 20, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Paralegal Decision Writer, GS-950-12, at the Agency's Office of Disability and Adjudication Review in San Antonio, Texas.
On September 26, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Korean/American) and in reprisal for prior EEO activity when:
on August 18, 2011, she did not receive an Exemplary Contribution of Service Award.
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On April 20, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race and reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima facie case of race and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Complainant's supervisor (S1) stated that he was involved in a management team which included other supervisors and the Hearing Office Director, and they reviewed the nomination process in determining who should receive an Exemplary Contribution of Service Award (ECSA). S1 stated that ECSAs are cash awards given out to employees going above and beyond their job description, and performing an extraordinary service. S1 stated that the management team "discussed all the eligible employees including those I don't supervise but I did not provide input discussing them. I made no recommendations for any of the three paralegal analyst decision writers I supervised including Complainant." S1 further stated that he recommended 7 employees for the subject award, and most of them were at the GS-7 or GS-8 level. One was at the GS 9 level.
S1 stated that he made his recommendations to the Hearing Office Director, and she presented all of the supervisors' recommendations to the Hearing Office Chief Administrative Law Judge (HOCJ) "who made the final recommendations. My recommendations were not changed by either one of them. No additional candidates were added."
S1 stated that he did not recommend Complainant for an award because her contribution "did not merit an award. Of those I supervised, less than half received the award. None of those I recommended were in the same position held by Complainant." Furthermore, S1 stated that Complainant's race and prior protected activity were not factors in his determination not to recommend her for an award.
With respect to Complainant's assertion that she should have received an award because her productivity was greater than others who received an award who worked overtime, S1 denied it. Specifically, S1 stated "productivity played a minor role in determining who received the award. The award's purpose is to recognize acts which go above and beyond the employee's normal duties. Overtime is not a factor in appraisals or awards."
The Hearing Office Director, also Complainant's second-level supervisor (S2), stated that a management team comprised of herself and other supervisors participated in the nominating process. S2 stated that the supervisors nominated employees for awards, and that it was not her responsibility to nominate anyone. S2 stated to be eligible for an ESCA award, an employee "must perform at an extraordinary service or act in connection with or related to official duty, or demonstrate exemplary contributions to group performance. An employee must have at least a 3.0 performance rating to be eligible." S2 stated at that time S1 "was the nominating official for those he supervised including Complainant." S2 further stated that HOCJ was the approving official concerning the subject awards.
HOCJ stated that during the relevant time, he received nominations from the management team and "signed-off on the recommendations for awards, which were then routed to the Regional Office in Dallas for processing. [S2] presented the names of the proposed recipients for awards. I did not make any changes or additions to the list of names for the ECSA."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant argues that her overall fiscal year 2010 productivity index "was greater than other paralegal writers who received awards with 88%, 223 decisions written and only 11 hours overtime worked, saving taxpayer's money [emphasis in its original]!" Complainant further argues that while S1 improperly stated that he did not recommend any paralegals for an award, two named paralegals were also supervised by S1 were recommended for an award.
Finally, Complainant argues that S2 was the approving official for the AFGE awards and "it is blatantly obvious that I have been discriminated against and targeted for reprisal for prior EEO claims by being excluded from receiving awards [emphasis in its original]."
In response, the Agency requests that the Commission affirm its final decision finding no discrimination. The Agency argues that Complainant improperly focused on her overall productivity for fiscal year (FY) 2010 because "the ECSA is not intended to award overall productivity, but award a specific extraordinary service or act, or some exemplary contribution that an employee performs."
With respect to Complainant's claim that S1 recommended two named female paralegals (F1 and F2, respectively) for an award, the Agency argues that the record reflects S1 became F1's supervisor after Agency management promoted her to a Paralegal Analyst but S1 did not recommend her for a FY 2010 ECSA award. The Agency further noted that the Agency made a typographical error submitting F2's name on the FY 2010 ECSA awardee list. The Agency argues that the record is supported by S2 and HOCJ, both stating that a named employee with the same last name as F2's last name received a FY 2010 ECSA, but neither stated that F2 received an award.
Moreover, the Agency argues that evidence in the record reflects that HOCJ, not S2, was the approving official concerning the subject awards. The AJ noted that in his affidavit, HOCJ stated that he did not make any additions or subtractions from the list of recommended award recipients for the FY 2010. The Agency also noted that there was no evidence showing that S2 exhibited any negative power or influence that prevented Complainant from receiving an ECSA award.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
September 18, 2012
__________________
Date
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0120122169
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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