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

Equal Employment Opportunity Commission

Oct 6, 2020

2019005424 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annie V.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005424 Hearing No. 410-2019-00102X Agency No. ATL-18-0696-SSA DECISION On July 25, 2019, 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 July 18, 2019 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Social Insurance Specialist, GS-0105-12, at the Office of Quality Review in Atlanta, Georgia. On July 13, 2018, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of age (54) and reprisal (prior union grievance raising EEO claims) when on May 17, 2018, she was notified that she was not selected for a Lead Social Insurance Specialist (Program Leader) position advertised under Vacancy ID No. SG-1016405-18-MKB. Complainant identified Office Director in his capacity as the selecting official (SO) and the three members of the interview panel as the responsible management officials. 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. 2019005424 2 At the conclusion of the ensuing 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 assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a summary judgment decision on July 17, 2019, finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The interview panel consisted of the Program Leader of the Denver, Colorado Office of Quality Review, a Branch Chief within the Office of Quality Review in Baltimore, Maryland, and a Branch Chief within the Office of Quality Review in Kansas City, Missouri. Prior to being chosen, each panelist had to verify that they did not know any of the candidates personally. The panelists averred that they reviewed applications and conducted telephone interview of 21 candidates, including Complainant and four of the selectees. Exhibit (Ex.) F4, p. 3; Ex. F5, p. 4; Ex F6, pp. 4-6 ; Ex. F7, p. 4. They scored the applications on an 80-point scale that included 40 points for the interview, 15 points for a writing sample, 5 points for the SSA-45 form, and 20 points for a supervisory recommendation. Ex. F4, p. 3; Ex. F5, pp. 4-5; Ex. F6, p. 6-8; Ex. F7, pp. 4-5; Ex. F10d, p. 2. The panel then referred the scores to the SO, who chose the candidates with the four top scores. The SO also selected the fifth candidate from a noncompetitive eligibility certificate. Complainant was not among the candidates with the four highest scores. Ex. F4, pp. 4-5; Ex. F5, pp. 5-6; Ex. F6, pp. 8-10; Ex. F7, pp. 5-6; Ex F10c, pp. 2, 4; Ex. F10d, pp. 3-4. ANALYSIS AND FINDINGS Standard of Review 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. 2019005424 3 Disparate Treatment in a Nonselection To warrant a hearing on the disparate treatment claim raised in connection with her nonselection, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The selection process was such that the three panelists did not recommend individual candidates by name. Instead, they scored each of the 21 applicants based on interview performances, writing samples, SSA-45 forms, and supervisory recommendations, and then forwarded this information to the SO. All three panelists stated that they were unaware of Complainant’s age or prior EEO activity. Ex. F4, pp. 2-3; Ex. F5, pp. 2-3; Ex. F6, pp. 3-4. Such knowledge is central to Complainant’s prima facie case. In addition, the record reveals that three of the selectees were over the age of 40. Further, while Complainant claimed that her protected EEO activity involved a union grievance she filed in 2013 or 2014 based on discrimination, a review of the grievance in question reveals no evidence that she raised discrimination therein. We additionally note that even assuming Complainant did engage in protected activity through this grievance, Complainant’s non-selection occurred over four years later which demonstrates a lack of sufficient temporal proximity to establish a causal nexus. Consequently, we find, as did the AJ, that Complainant has not been able to raise a genuine issue of material fact with regard to the establishment of a prima facie case of discrimination or reprisal. Even if we were to assume that Complainant did establish a prima facie case of discrimination or reprisal, however, the next step in the inquiry would be for the Agency to articulate a legitimate and nondiscriminatory reason for not choosing her for the Program Leader position. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The SO affirmed that he chose the candidates with the five highest scores, including a candidate who was referred on a noncompetitive eligibility certificate. Complainant’s score was not among the five highest. Based upon her score, SO did not select Complainant as one of the most qualified candidates for the position. In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2019005424 4 When asked why she felt that her age and prior EEO activity were factors in her nonpromotion, she replied that she had been an outstanding employee for the previous three years, having received ratings of five for the quality of her work and her contributions to the office. She averred that she voluntarily joined outside committees that were relevant to her job and held leadership positions on those committees. She averred that she mentored employees below her grade level for four years and helped implement functions that changed business processes within the office for the better. Ex. F2, pp. 4-6. Complainant should bear in mind, however, that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra 450 U.S at 259. Ultimately, Complainant has presented neither affidavits, declarations or sworn statements from witnesses other than herself nor documents which contradict or undercut the SO’s or the panelists’ assessments of the candidates’ qualifications, which establish the existence of any of the indicators of pretext listed above, or which would cause us to question the veracity of the SO or the panelists as witnesses. We therefore agree with the AJ that, even assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, Complainant has not presented any evidence sufficient to raise a genuine issue of material fact as to whether the SO or the panelists relied upon unlawful considerations of Complainant’s age or prior protected EEO in connection with the nonpromotion at issue in Agency No. ATL-15-0696-SSA. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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. 2019005424 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019005424 6 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 October 6, 2020 Date