0120160722
05-22-2018
Dong R.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dong R.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160722
Agency No. KC140685SSA
DECISION
On December 1, 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 October 30, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision which found that Complainant did not prove that he was subjected to discrimination as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against based on his race, national origin, sex, or in reprisal for prior EEO activity when he was not referred for two advertised positions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Service Technician, GS-8 at the Agency's Mid-America Program Service Center in Kansas City, Missouri. Complainant applied for the positions of Social Insurance Specialist, GS-09, and GS-11. He was not referred for either position. Complainant argued that his former supervisor (S1) whom he had filed several EEO complaints against was preventing him from being promoted. Complainant argued that based on what S1 said about him in their prior proceedings she did not want him promoted; even though he had four Masters' Degrees and years of experience.
On October 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Nigerian), sex (male), and reprisal for prior protected EEO activity when:
1. On or about June 17, 2014, he was not referred for consideration for the Social Insurance Specialist (Claims Authorizer), GS-105-09, position advertised under Vacancy Announcement Number (VAN) SK-1112395-14-171; and
2. On or about June 17, 2014, he was not referred for consideration for the Social Insurance Specialist (Claims Authorizer), GS-105-11, position advertised under VAN SK-1112395-14-171.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. 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 him to discrimination as alleged. Specifically, the Agency maintained that even if Complainant established a prima facie case of race, national origin, sex, and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant was not referred for either position because he did not make the referral cutoff.
A Human Resources Specialist (HRS), explained the process. She indicated that after she received the computer-generated scores for the applications, she verified each rating. Based on those ratings, she referred to the selecting official the appropriate number of applicants for each position based on the SSA/AFGE Merit Promotion Plan and the cutoff scores for each position. HRS stated that the cutoff score for the GS-9 position was 76, which equated to a rating under the automated system of 100. The cutoff score for the GS-11 position was 73, which equated to a rating under the automated system of 99. Any applicant with a score lower than 100 was not referred to the selecting official for the GS-9 position and any applicant with a score lower than 99 was not referred to the selecting official for the GS-11 position. She states that after the list of referred applicants was generated, she forwarded it to the selecting official to make the selection decisions. HRS explained that Complainant received a score of 99 for the GS-9 position, which was below the cutoff of 100, and a score of 98 for the GS-11 position, which was below the cutoff of 99. Because Complainant's scores were lower than both cutoffs, she did not refer him to the selecting official for either the GS-9 or GS-11 positions.
HRS indicated that the selection process used for this position was the same as had been used in the past for these positions. She also stated that no supervisors from Complainant's office, or the Workload Support Unit, were involved in determining which applicants would be referred to the selecting official, nor was S1 involved in this determination. HRS testified that she was the only person involved in processing the applications for these positions. She stated that no managers would have known who applied for the positions because they did not have access to the application information. She added that the only manager who would have information regarding the applications is the selecting official, and that official would only become aware of the applications after she created the referral list and sent it to the selecting official. Moreover, HRS testified that the selecting official did not have access to any other information, nor was the selecting official aware of any information about any applicants not referred to her. Finally, HRS indicated that she was not aware of Complainant's race, national origin, or prior EEO activity, although she believed he was male based on his name.
The Agency maintained that it articulated legitimate, nondiscriminatory reasons for its actions, in short, S1 was not involved with the referral and Complainant was not referred because he did not make the cutoff requirements for the positions. The Agency determined that Complainant did not show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the reason he was not referred for the positions was due to the actions of S1. Complainant maintains that he was more qualified than some of the candidates referred but he did not list the candidates. Complainant argues that given his superior qualifications which included his four Masters' Degrees and thirteen-year experience at the Agency, he was more than qualified.
Further, Complainant contends that his performance appraisal should have been considered for the position. He also maintains that the Agency's performance evaluation system is discriminatory, as evidenced by the settlement of a national grievance related to the Agency's 2013 performance-evaluation process.
In response, the Agency contends, among other things, that it articulated a legitimate, nondiscriminatory reason for Complainant's nonreferral, namely that he did not met the minimum cutoff score per the automated scoring system for the positions. The Agency reiterates that the applications were processed by HRS whom had no knowledge of his protected bases except she believed him to male based on his name.
No supervisor or mangers were involved in with the referral list. More specifically, S1 was not involved in determining who would be referred.
Also, the Agency maintains that the evidence attached to Complainant's brief should not be considered as it is not properly before the Commission because it is new evidence; Complainant's performance evaluations are not relevant to this case and were available at the time of the FAD; and the settlement of a national grievance is not evidence of discrimination in this case.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination on all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not referred for either position because he did not make the cutoff score for either position. While Complainant argues that his past interactions with S1 prevented him from being referred for the positions, he presented no persuasive evidence that S1 interfered with the process or was involved at the referral stage of the selection. We find that Complainant has not met this burden. We note that the Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may have been able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, however, Complainant, admitted that he did not know the qualifications of the selectees; therefore, he has failed to make this showing. While Complainant disagrees with the selection process, he has not met his burden of establishing, by a preponderance of the evidence, that his nonselection was based on race, sex, national origin, or reprisal. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
Finally, we agree with the Agency that evidence that was previously available and new evidence should not be considered on appeal. Notwithstanding, with respect to Complainant's contentions on appeal, we find that other than his conclusory statements, he has not shown that discriminatory animus was involved in his nonselections.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision which determined that Complainant did not demonstrate that he was subjected to discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__5/22/18________________
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.
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