U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rayford H,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120152022 Hearing No. 560-2014-00068X Agency No. DAL-12-0565-SSA DECISION On May 20, 2015, 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 April 20, 2015, final order concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contact Representative (Service Representative), GS-8 at the Agency's Oklahoma City Field Office in Oklahoma City, Oklahoma. On August 8, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him: 1. based on his race (White) and sex (male) when in May 2012, he was not selected for promotion to Social Insurance Specialist (Claims Representative), GS-9 advertised under vacancy announcement number ST-629840-137-12-DAL, and received no developmental assignments that would have made him better qualified; and 2. based on reprisal for prior EEO activity when the Agency denied his representative official time to work on his case on October 29, 2012 and December 17, 2012. Following an investigation, the Agency sent Complainant a copy thereof. He requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination on issue 1. On issue 2 the AJ found that the Agency complied with Commission regulations, hence his retaliation claim failed. The Agency issued a final order adopting the AJ's decision. During March and April 2009, the Agency solicited applicants for two slots for the position of Claims Representative at the Oklahoma City Field Office. Claims Representatives conduct interviews and help claimants develop their claims for retirement, survivors and disability benefits and/or supplemental security income (SSI). They work with claimants to establish their continuing eligibility for payment, assist claimants in filing for administrative appeals, adjudicate claims and authorize them for payment, provide referral services, and identify and investigate potential program abuse. Report of Investigation (ROI), Exh. 12a. The position description for Service Representative indicates they perform similar work, but generally more at the initial stages, e.g., it does not indicate they adjudicate claims. ROI, Exh. 17. Service Representatives also do intake. Including Complainant, the Agency's Center for Human Resources certified 21 applicants as eligible for competitive promotion to the position of Claims Representative, at the GS-9 level, and referred them to the selecting official (SO), the District Manager of the Oklahoma City Field Office. After reviewing their applications, talking to their first line supervisors and considering their recommendations, SO chose Selectee 1 (Black female) and Selectee 2 (White male). Complainant, Selectee 1, and Selectee 2 were Service Representatives, GS-8 at the Oklahoma City Field Office and had the same first line supervisor (S1). Drawing all reasonable inferences from the evidence in favor of Complainant, the AJ found by a preponderance of the evidence that various facts were undisputed, as set forth in the paragraphs below. S1 made her recommendations on "Candidate Evaluation Forms," which required she rate each candidate she supervised in various competencies, answer narrative questions, and make a recommendation of "Highly Recommended," "Recommended," or "Not Recommended." S1 highly recommended Selectees 1 and 2, giving Selectee 1 28 "excellent" and 3 "good" ratings, Selectee 2 29 "excellent" and 2 "good" ratings and no negative narrative responses on them. S1 assessed Complainant as not recommended, giving him 6 "excellent," 12 "good," 8 "satisfactory," 4 "fair" and 1 "poor" rating and multiple negative narrative responses including "At this time I do not feel there has been significant accomplishment by [complainant]," "He has not displayed an interest in fraud prevention," "[Complainant] is not accountable. He is absent from work on many occasions. Due to his absence, he... misses many training sessions and important meetings. [Complainant] also needs to improve his job knowledge skills...[and]... time management skills...." Selectee 1 started with the Agency as a GS-7 in (September) 2007, and a had Bachelor's degree and Master's degree. Selectee 2 started with the Agency as a GS-5 in (March) 2008, and had Associate's degree and a Bachelor's degree. Complainant started with the Agency as a GS-7 in (May) 2008, and attended college without earning a degree. Complainant's representative (R1) was assigned to the Agency's Tulsa Oklahoma Field Office as a Claims Representative. R1's first line supervisor (S2) was primarily responsible for approving or denying his requests for EEO official time. R1 was President of Local 2502 of the American Federation of Government Employees (AFGE). Under the collective bargaining agreement (CBA) he was designated as a 1040, meaning 50% of his time was for union business. However, the Agency, the union, and/or R1 agreed to a schedule where R1 would perform his Claims Representative duties two days a week (Monday and Tuesday). This resulted in R1 being available three days a week (Wednesday, Thursday, and Friday) to conduct labor-management activities and represent employees in statutory EEO complaints. Under the CBA, such EEO representation did not count against union bank time.2 Pursuant to the CBA, AFGE requested that the Agency grant R1 LWOP to engage in union activities (including his Mondays and Tuesdays), which was granted. R1 requested official time for representational activity for (Monday) October 29, 2012 and Monday December 18, 2012, to work on multiple EEO cases (both dates). S2 denied R1's request (as made) for October 29, 2012,3 and for December 18, 2012. For October 29, 2012, S2 explained to R1 that he needed to perform Agency work - process paper appeals and phone duty, as already scheduled, and for December 18, 2012, explained to him that his request for LWOP for that day was already approved.4 For both dates S2 offered R1 the immediately following Wednesday, Thursday, and Friday as alternate dates. On issue 1, the AJ, citing case precedent, found that since the Agency articulated a legitimate nondiscriminatory reason for not selecting Complainant, the analysis of whether discrimination occurred may proceed to the final step of whether the articulated reason was pretext to mask discrimination and the ultimate question of whether there was intentional discrimination. Specifically, the AJ found that the Agency used an organized and evaluative process to review the materials for the eligible candidates. The AJ found that Selectees 1 and 2 and Complainant started within two years of each other, Selectee 1 had more time and experience as a GS-8 than Complainant, and only Complainant lacked a college degree. The AJ found that while Complainant was qualified for the position at issue and was bilingual, he failed to show that his skills and experience made his qualifications significantly better than the selectees. Citing case law, the AJ found that in the absence of discriminatory intent, an Agency has broad discretion to choose among equally qualified candidates, and pretext may be demonstrated where a complainant's qualifications are "plainly superior" to the selectee, but it is the selecting official's perception of the relative qualifications of the candidates that is critical. The AJ found that Complainant did not show his qualifications rose to a level which demonstrated pretext. The AJ also found that Complainant did not prove pretext because of alleged irregularities, either since they did not occur or were not inappropriate, as applicable, e.g., the Candidate Evaluation Forms were altered, the SO did not review his annual appraisal, and S1's comment in the Candidate Evaluation Form that Complainant "needs to improve his job skills" and is "not dependable" was subjective. Regarding Complainant's claim that he was denied developmental assignments that would have made her better qualified for the position at issue, the AJ found that Complainant admitted he did not request any specific assignments. On issue 2, citing to an EEOC Management Directive and case law, the AJ found the following. In ruling on the denial of official time, the Commission determines whether the Agency complied with the Commission's official time regulations - a ruling on whether the denial was discriminatory is not required. Use of official time by representatives is restricted to "reasonable time," and with respect to preparation time (as opposed to time spent in meetings and hearings) "reasonable" is generally defined in terms of hours, not days, weeks, or months. Even when an employee is entitled to official time, he is still expected to spend the majority of his time completing work assignments. The AJ found that R1 was scheduled to perform Agency work on the days in question, and was offered reasonable alternate dates, and hence the official time claim failed. On appeal, Complainant argues that S1's assessment of his performance on the Candidate Evaluation Form was not supported by documents in the ROI. On EEO official time, Complainant argues that the only question was which days would be granted, not the amount of time. He argues that R1 was not expected to do Agency work. In opposition to the appeal the Agency requests that the AJ's decision 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. Issue 1 As an initial matter, we find that the AJ properly set forth the law to be applied, and hence do not repeat it here. We agree with the AJ, for the reasons she found, that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. SO indicated that in not selecting Complainant, he gave S1's recommendation much weight. She recommended Selectees 1 and 2. She did not recommend Complainant, citing performance issues. He further stated that nothing in Complainant's application stood out. In explaining his choices, SO also stated in part that Selectee 1 voluntarily took on the additional duty of third party draft cashier, work sampling, and helping with the workload in SSI, Selectee 2 volunteered to do training and help with SSI workloads, and both selectees were supervisors in previous jobs (unlike Complainant). ROI, Exhs. 6, at 4, 7; 12i, at 1 - 2, 4 - 5. S1 stated that Selectees 1 and 2 volunteered for all their additional assignments by going to the supervisor over a particular workload. ROI, Exh. 10, at 3. While Complainant disputes S1's assessment of his performance, he has not shown his qualifications were plainly superior to those of Selectees 1 and 2. He has not proven discrimination on issue 1. Issue 2 We find that the AJ properly set forth the law to be applied. We agree with the AJ, for the reasons she gave, that the Agency complied with the Commission's EEO official time regulations. The actual number of hours to which a complainant and her representative are entitled will vary, depending on the nature and complexity of the complaint and considering the mission of the agency and the agency's need to have its employees available to perform their normal duties on a regular basis. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-17 (as revised Aug. 5, 2015). Given that R1 was only scheduled to do Agency work on Mondays and Tuesdays, much of which he took off to conduct union business, and he was busy representing a number of complainants, the Agency did not violate the Commission's official time regulation by steering him to use official time on Wednesdays, Thursdays, and Fridays. The record reflects that the Agency balanced this against complainants' need for representation when things were pressing. We disagree with Complainant's assertion that R1 was not expected to do any Agency work. The Agency's final Order is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 (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 June 8, 2017 __________________ Date 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 Under the CBA, the union had an annual bank of 250,000 hours of official time reserved for union representational activity, i.e., term and mid-term negotiations, dispute resolution, and general labor management relations meetings, and official time for representing employees in statutory EEO complaints was regulated by 29 C.F.R. Part 1614. 3 S2 granted R1's request for the morning of Monday, October 29, 2012, to represent a complainant, and denied the remainder of his request. In her email to R1 partly approving his request, S2 indicated the approval was because of the short time to complete the EEO matter (R1 wrote it was due on November 1, 2012). 4 S2 stated that she denied R1's requests to swap EEO official time for approved LWOP because he was supposed to perform Agency work on Mondays and Tuesdays. R1 stated he has not performed any of his Claims Representative duties since August 2012, instead doing union work and representing EEO complainants. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152022 7 0120152022