Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 13, 2015

01-2013-3068-0500 (E.E.O.C. May. 13, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120133068

Agency No. ODAR110705SSA

DECISION
On August 19, 2013, Complainant filed an appeal from the Agency’s July 16, 2013 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. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative
Assistant, GS-09, with the Agency’s National Hearing Center, Office of Disability
Adjudication and Review which is located in Chicago, Illinois. On September 20, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Black), sex (female), age (49), and in reprisal for prior protected EEO activity
when: (1) on May 18, 2011, Complainant was notified that she was not selected for the
position of Administrative Specialist (OS-0301-11) advertised under Vacancy Announcement
No. SH430782; (2) on August 18, 2011, Complainant was notified that she was not selected
for the position of Administrative Specialist (OS-0301-11) advertised under Vacancy
Announcement No. SH430437; and (3) on June 27, 2011, management intentionally advertised
the position of part-time Administrative Specialist (OS-0301-11) (under Vacancy
Announcement No. (SH493286) in an effort to harm Complainant.1

1 Complainant is not contesting the Agency’s final decision in relation to Claim 3.
Accordingly, we do not address it herein.
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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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued 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.

FACTUAL BACKGROUND
On February 9, 2011, Complainant applied for the position of Administrative Specialist, GS-
0301-11 in the Office of Inspector General, Office of Investigations (OI) Chicago Field
Division, advertised by Vacancy Announcement No. SH430782 (Vacancy 1). Complainant's
name was included on the Best Qualified List (BQL) and the Certificate of Eligibles (COE)
dated February 18, 2011. Complainant interviewed with a panel consisting of three OI
employees (ASAC1, ASAC2 and SA1).

Complainant reported that she felt the questions were relevant to the position and believed that
the interview went well. During the interview, Complainant acknowledged being asked,
"Have you ever been reprimanded?" and that, when she asked for clarification of the question,
the interviewer asked, "Have you ever been given the opportunity to resign a position prior to
being terminated?" To the latter question, Complainant testified that she answered, "No."
Complainant denies answering any questions concerning whether she had ever been suspended
during the three-panel interview. ASAC1 explained that Complainant and another applicant
(C1) were each selected to interview for the position. He also stated that the panel asked the
same documented questions of each applicant. Among other questions, the panel asked,
whether "[you] quit a job after being told you'd be fired" and "you [had] ever been disciplined
by your employer/supervisor?" All three panelists documented that Complainant answered no
to both questions.

The selecting official (SAC1) (who was not involved in the interview process) stated that he
reviewed the applications of each candidate on the BQL and that the interview panel found both
Complainant and C1 equally qualified. SAC1 testified that, after reviewing their applications,
he determined that, because C1 had a Master's Degree, she would not remain in the position
long. Accordingly, he recommended Complainant for the Administrative Specialist position.
SAC1 further testified that, on or about April 8, 2011, OIG Headquarters informed him that,
during a limited background check, it was discovered that Complainant had been suspended in
1998. Upon learning of Complainant's suspension, on or about April 11, 2011, SAC1
requested that ASAC1 call Complainant for a follow-up interview about the 1998 incident.

According to both ASAC1 and SAC1’s testimony, the record shows that after speaking with
Complainant, ASAC1 advised SAC1 that Complainant admitted being suspended in 1998 and
further told SAC1 that the suspension was vacated after she filed an EEO complaint.
Complainant testified that she confirmed the suspension and explained the circumstances
surrounding the disciplinary action. She further affirmed that she filed an EEO complaint
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about the suspension against the responsible management officials (RMO1 and RMO2) on the
basis of race discrimination.

Complainant further testified that she did not tell ASAC1 that the suspension had been vacated,
but rather that she could not remember the outcome of the EEO complaint. SAC1 explained
that he contacted the Center for Security and Integrity (CSI) to determine the validity of
Complainant's statement that her suspension was vacated. CSI advised that an electronic
record entry related to the suspension read "Dismissed - File Destroyed." Thereafter, SAC1
called the Region V Human Resource Office and the Assistant Regional Commissioner for
Management and Operational Support (ARC MOS), and learned that Complainant had been
suspended and that the suspension had not been dismissed or vacated due to an EEO complaint.
SAC1 further testified that, if, during her April 2011 telephone conversation with ASAC1,
Complainant had simply stated that she forgot about the suspension during the interview, and
did not intentionally lie to ASAC1 about her suspension being vacated, he would have hired
her.

On May 18, 2011, SAC1 contacted Complainant and explained that she was not selected
because she had lied about the 1998 suspension. Complainant asserts that SAC1 relied on
events that happened more than thirteen years ago and misrepresented her conduct during the
interview process as pretext for his real reasons for not hiring her. Complainant further states
that she believes that SAC1's familiarity with RMO1 and RMO2 played a role in his decision
not to hire her. However, SAC1 denies knowing RMO1 or RMO2. He further asserts that
neither RMO1 nor RMO2 had input into the non-selection of Complainant.2

In addition, SAC1
denies that the nonselection of Complainant was based on her race, sex, age, or in retaliation
for her prior EEO activity.
SAC1 testified that the sole reason he did not hire Complainant was because she made two
false statements during the selection process. SAC1 also testified that he did not make a
selection for Vacancy 1. Instead, he re-advertised the position under Vacancy Number
SH470437 (Vacancy 2), in order to increase the number of applicants and to see if he could get
veterans to apply. Complainant applied for the position of Administrative Specialist, GS-0301-
11 under Vacancy 2. Complainant, C1, the selectee (SE), and 12 other applicants were on the
COE.

Complainant stated that she was not interviewed for the position. On or about August 8, 2011,
Complainant received a disposition letter notifying her that she had not been selected and was
not provided with any reasons for her nonselection. Complainant asserts that her nonselection
was due to the same discriminatory reasons she was not selected for Vacancy 1. ASAC1
testified that he participated on the interview panel for the Administrative Specialist position
advertised under Vacancy 2. ASAC1 confirmed that, although Complainant was on the BQL,

2 Complainant's prior EEO complaint was made against supervisors at a different facility, more
than 13 years before the nonselections at issue.

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she was not interviewed for the position because of the false statements she made during the
selection process for Vacancy 1. ASAC1 reported that the panel initially recommended C1
but, during a preliminary background investigation, her supervisors were contacted and did not
recommend her. Accordingly, the interview panel changed their recommendation to SE.

SAC1 confirmed that Complainant was not selected because of her lack of candor during the
previous selection process. SAC1 further testified that he had intended to select C1 when the
position was reposted, based on her earlier interview, but that he changed his mind when he
contacted her supervisors and neither recommended her for the position. SAC1 further
testified that he reviewed the application of each candidate on the COE. He stated that SE had
worked in administration and procurement in the Air Force, was a veteran, and had all of the
skills OI sought. SAC1 signed the COE, indicating that he had selected SE on June 16, 2011.

ANALYSIS AND FINDINGS
We agree with the Agency’s finding that the record contains insufficient evidence to discredit
SAC1’s assertion that he did not select Complainant solely because she made false statements
during the selection process. Moreover, we agree with the Agency in finding that the record is
devoid of evidence to suggest that SAC1 was motivated by Complainant's race, sex, age, or
prior EEO activity.

Complainant argues on appeal that SAC1's reasons are not worthy of belief because she did not
make either of the two false statements upon which he relies; and, she claims that neither
SAC1 nor the EEO investigator did enough to resolve the discrepancies between her statements
and ASAC1's statements. We find the investigation adequate and complete. We note that
several Agency witnesses support the finding that SAC1 honestly believed that Complainant
provided two false statements during the application process. Moreover, Complainant’s
assertions were not corroborated by any documentary or testimonial evidence in the record.
However, if Complainant felt the investigation needed further development she had the right to
request a hearing where she would have been provided additional opportunities to develop the
record. However, Complainant failed to take advantage of this opportunity. Accordingly, her
assertion that the investigation was inadequate is not persuasive.

Complainant also asserts that the record shows that her experience, tenure, ratings, and
qualifications were superior to SE. However, we find that the record shows that both SE and
Complainant were well qualified. Lastly, Complainant's attempt to prove pretext by asserting
that SAC1 also discriminated against C1 fails, as there is no evidence in the record to support
this assertion. In fact, the record shows that C1 filed an informal discrimination complaint,
which she withdrew after learning that SAC1's nondiscriminatory reason for not hiring her
(i.e., her supervisors failing to recommend her), was supported by the evidence.

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CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we
AFFIRM the Agency’s final decision.

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.
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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

Date
May 13, 2015