0120131627
06-12-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131627
Hearing No. 550-2011-00499X
Agency No. DEN-11-0092-SSA
DECISION
On March 11, 2013, Complainant filed a timely appeal from the Agency's February 26, 2013, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Insurance Specialist Technical Expert, GS-12, at the Agency's Missoula District Office in Missoula, Montana.
On February 4, 2011, Complainant filed an EEO complaint alleging that she was discriminated against based on her sex (female), age (40), and reprisal for prior protected EEO activity under the ADEA when she was notified on September 15, 2010, that she was not selected for the position of Operations Supervisor, GS-12, advertised under Vacancy Announcement SZ-373287-189-10. The job was only open to Agency employees.
Following Complainant's receipt of the Agency's EEO investigation and request for a hearing, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ), over Complainant's objections, granted the Agency's motion for a decision without a hearing (hereinafter referred to as Motion for Summary Judgment (SJ)), and found no discrimination. The Agency adopted the AJ's decision.
Complainant started working with the Agency as a stay-in-school Claims Clerk in 1995, and by 1999 was promoted to Claims Representative. She started in the latter position at the GS-7 level, and by 2001 was promoted to GS-11. In 2005, she was promoted to the position of Social Insurance Specialist Technical Expert, an advanced claims representative type position.
The Agency advertised the position in question in August 2010. Eleven applicants, including Complainant and the selectee, were certified as eligible therefore. Meanwhile, the District Manager for the Missoula Office retired in August 2010, and the District Manager for another Agency office (female, age 54) was asked to be acting District Manager for the Missoula Office for two months while a successor was being selected. The acting District Manager was Complainant's second line supervisor. The chosen successor District Manager (female, age 57) took over in late September 2010. Previously, she was the District Manager for another Agency office.
The acting District Manager created a promotion package for the successor District Manager. In so doing, by email she requested each candidate's first line supervisor to complete a "recommendation for selection" sheet, referred to by management was a "reference check," soliciting assessments about the candidate and asking the supervisor to highly recommend, recommend, or not recommend the candidate for selection.
Thereafter, the acting District Manager created a matrix containing all the eligible candidates, which included a list of the first line supervisors' level of recommendation for each candidate and in some or all cases a brief summary of the first line supervisors' assessments of them.
The acting District Manager sent the promotion package to the selecting official, which included the first line supervisors' recommendation sheets. The selecting official stated these sheets are gone. In making the selection, the selecting official only considered candidates who were "highly recommended" by their first line supervisor. Report of Investigation (ROI), Exh. 9, at 2, Motion for Summary Judgment, Exh. D, at 1. This was three candidates.
Complainant's first line supervisor (male, age 60), who had been in the office for less than four months prior to being asked to complete the recommendation sheet, only "recommended" Complainant. According to the matrix, he indicated that he had some reservations due to his feeling that Complainant may not be an effective Operations Supervisor because he was not sure she had the leadership skills needed to resolve conduct issues and deal with performance problems.
In his EEO affidavit, the first line supervisor stated Complainant was the workhorse of the Supplemental Security Income (SSI) program, and often helped clear up the backlog of cases. He wrote that there are few candidates he would "highly recommend." He stated that the only concern he recalled mentioning on the recommendation sheet was that he did not know how well she might perform in a supervisory situation. The first line supervisor explained that he did not know Complainant completed a four month detail (in October 2008) supervising service representatives, and he was unsure she could do performance appraisals, supervise a unit, mete out discipline, and all that this entailed. He stated his concern was expressed more as an unknown factor as opposed to saying Complainant could not do certain tasks as an Operations Supervisor. He added that Complainant seemed to have ambiguous feelings as to whether she really wanted the job.
Complainant contended that she was retaliated against for providing an affidavit in October 2009, in an EEO case of a co-worker. The first line supervisor stated that he did not know Complainant's age and was not aware of her prior EEO activity.
The former District Manager of the Missoula Office, who retired in August 2010, stated that had he been asked, he would not have recommended Complainant for the Operations Supervisor position. While complimenting her performance in her line job, he did not think Complainant would do well in a supervisory position, especially in the Missoula District Office for a number of reasons. He explained that Complainant had a very close relationship with the union steward - friends with him outside the office and eating lunch with him almost every day, and being his supervisor would create a conflict of interest because the steward clearly favored Complainant and a minority of other office staff members which would compromise her decision making ability. He wrote that Complainant demonstrated emotional volatility, often crying at her desk or having to leave the office. The former District Manager stated that at the end of her four month detail in 2008 as an Operations Supervisor, Complainant was unable or unwilling to provide performance reviews of the staff she supervised because she did not want to review her friends. Instead, he completed the performance reviews.1
The selectee (male, age 33), who was a Claims Representative, GS-11, in another Agency District Office, was "highly recommended" by his supervisor. The selectee started with the Agency in 2007 as a GS-9 bilingual Claims Representative, and was promoted in 2008 to GS-11. The record reflects that the selectee was a participant in the Denver Achievement Program, which the Agency argues was a management training program.
The selecting official stated that after narrowing down the "highly recommended" candidates to two, she called their supervisors with a few more questions. She stated that the selectee's supervisor indicated he had very strong interpersonal skills, was the person who monitored the calendar in the office, assigned appointments, was organized and flexible, and handled stress well. She wrote that she wanted someone who was able to handle stress well because the Operations Supervisor is the first person who deals with disgruntled customers, and must be cool, calm and collected and possess strong leadership skills. The selecting official stated the selectee previously was a team leader and college professor, and she felt these jobs leant themselves to managing people and workloads.
The Area Director for the Denver Region concurred in the selection. He stated that he did not have any conversations with the acting District Manager or successor District Manager prior to his concurrence, and he did not tell them who to select. He stated that he did not look at the applications, and concurs in 99% of selections, and only does not sign off when he notices a glaring error.
The AJ found that Complainant made out prima facie cases of sex, age, and reprisal discrimination. Pointing in part to the explanation of the selecting official, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its selection decision. The AJ noted that while the basic functions of the Operations Supervisor position included providing technical guidance to claims and service representatives, the selecting official explained she was looking for the qualities referenced above.
The AJ found that Complainant failed to prove the Agency's explanation was pretext to mask discrimination. She noted that while Complainant's first line supervisor bemoaned being restricted to the choices of "recommend", "highly recommend", and "would not recommend", he was aware all candidates were being so rated, and placed Complainant in the "recommended" category. Addressing Complainant's contention that she was better qualified than the selectee because of her 15 years of experience with the Agency and more thorough knowledge of its programs, the AJ found that technical knowledge was not the primary factor management considered in making its selection. Pointing to the position description for Operations Supervisor, the AJ found the basic functions of the job were supervisory in nature, and Complainant was not superior in this regard.
On appeal, Complainant argues that the AJ improperly granted summary judgment. Regarding the missing recommendation sheets, Complainant argues that the Agency should have maintained them since they related to a selection, for at least a year, and because she brought her EEO case less than a year after her non-selection, the Agency was aware such documentation had to be preserved.
In opposition to the appeal, the Agency argues that is final order should be affirmed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
We agree with Complainant's argument that the first line supervisor recommendation sheets should have been placed in the record. See 29 C.F.R. � 1602.14. We find, however, that there is sufficient information in the record to make up for this absence - the matrix, and the statements of the first line supervisor, the acting District Director, and the successor District Director. The record is consistent that the first line supervisor only "recommended" Complainant, and the selecting official stated she only considered candidates who were "highly recommended" by their first line supervisors.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circ*mstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In affirming the finding of no discrimination, we agree with the findings of the AJ, as recounted above. We also emphasize that Complainant was essentially eliminated from consideration once her first line supervisor only "recommended" her for selection. There is no indication in the record that his assessment of Complainant factored in any discriminatory bias.
Accordingly the Agency's final order is AFFIRMED.
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 circ*mstances 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 circ*mstances. 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
June 12, 2015
__________________
Date
1 In her application for the position in question, Complainant wrote that she did performance appraisals for all three Service Representatives at the conclusion of her detail in October 2008. Complainant did not submit a statement in response to the former District Manager's declaration claiming she did not issue the performance appraisals.
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0120131627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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