Huong A.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

0120182754 (E.E.O.C. Dec. 19, 2019)

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

Huong A.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120182754

Hearing No. 420-2018-00067X

Agency No. ATL-17-0422-SSA

DECISION

On July 27, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the June
22, 2018 final agency decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Debt Specialist, GS-
0998-09, at the Agency’s Southeastern Program Service Center in Birmingham, Alabama.
Complainant applied for an Equal Employment Specialist position advertised under Vacancy
Announcement No. SG-184-6690-17-MDB. The Office of Human Resources sent a three-person
interview panel a ranked list of 56 applicants who were qualified for the position based on their
application materials. The panel conducted interviews with the top 12 candidates asking each
candidate the same questions. Complainant was found qualified and interviewed by telephone with
the panel. Complainant believed that she met or exceeded all of the qualifications for the position
and that she had a great interview.

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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Complainant claimed, however, that one of the panelists had difficulty hearing or understanding
her during the interview. The panel scored the interviews and referred the top three candidates to
the Selecting Official (SO) for further consideration. Complainant was not among the top three
candidates referred for further consideration. Complainant received a disposition letter dated
January 5, 2017 informing her that she was not selected for the position.

On June 6, 2017, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and in reprisal for prior protected EEO activity
when:

1. On January 26, 2017, Complainant was not selected for an Equal Employment
Specialist position, advertised under Vacancy Announcement No. SG-184-6690-
17-MDB, in the Birmingham, Alabama office.2

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 EEOC Administrative Judge.
Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In the decision, the Agency determined that Complainant had established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the panel members stated that all
applications were reviewed, and each panel member identified their top four candidates.
According to the panel members, all candidates were asked the same questions and the scores of
the top four candidates from each panel member were added and averaged to get the top three,
which were submitted to SO. Complainant did not make the list of three that was referred to the
SO. According to one panel member, the qualifications that made the Selectee stand out from
Complainant was her knowledge and ability to apply EEO laws and/or employee relations policies,
as well as her ability to advise and assist management, her communication skills both in writing
and oral, her knowledge of disability laws, her experience conducting training, and her
interpersonal skills.

Another panel member affirmed that the Selectee had excellent experience in EEO complaint
processing as she was a collateral duty EEO Counselor for several years and participated in a detail
assignment in the Civil Rights/Equal Opportunity Office (CREO) for 120 days in the last couple
of years and performed the entire function of an EEO Specialist. The panel member added that
Complainant's score was 71 out of 100, compared to the Selectee's score of 99 out of 100. SO
confirmed that she selected the panel’s top-ranked candidate, the Selectee.

2 The Agency subsequently dismissed an additional claim regarding a non-selection for a Social
Insurance Specialist position pursuant to 29 C.F.R. § 1614.107(a)(4) as Complainant had raised
the matter in a negotiated grievance procedure that permitted allegations of discrimination.
Complainant raised no challenges to the dismissal of this claim on appeal; therefore, the
Commission will not address it herein.
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SO affirmed that she was familiar with the Selectee's qualifications because the Selectee served as
a collateral duty EEO Counselor and that the Selectee had the mandatory 32-hour EEO Counselor
training certificate. As a result, SO selected the Selectee.

The Agency concluded that Complainant failed to demonstrate that management’s reasons for not
selecting her were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, Complainant was among the best
qualified candidates and interviewed for the position by telephone with a three-person interview
panel. ROI, Ex. 12, at 4. All candidates were asked the same questions framed around the
Knowledge, Skills, and Abilities required for the position. Id. at 2. The panel scored the interviews
and referred the top three candidates to SO for further consideration. Id. at 4. Following her
interview, the panel ranked Complainant 10th out of the 12 candidates with an average score of 71.
ROI, Ex. 29. The top three candidates were scored 89, 91, and 99 and were referred to SO. Id.
One panel member stated that the Selectee stood out as the best candidate based on her knowledge
and ability to apply EEO laws and/or employee relations policies, programs, and procedures; her
ability to advise and assist management; her demonstrated great communication skills both in
writing and oral and her knowledge of disability laws; her experience in conducting training; and
her interpersonal skills. ROI, Ex. 12, at 3. Another panel member concurred that the Selectee’s
experience, training skills, and interpersonal skills were exemplary and her ability to relay those
skills to the panel was the best of all the candidates. ROI, Ex. 13, at 3. The third panelist confirmed
that the Selectee had excellent EEO complaint processing experience based on her collateral duty
EEO Counselor duties and detail assignment in CREO and she displayed her knowledge of EEO
laws and procedures very well during the interview. ROI, Ex. 14, at 3-4.
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By contrast, the third panelist stated that Complainant’s interview was not very impressive and
that her experience and knowledge of discrimination laws and procedures were minimal. ROI,
Ex. 14, at 4.

SO stated that she selected the top-ranked candidate for the position as rated by the interview panel.
ROI, Ex. 15, at 4. SO confirmed that she had first-hand knowledge of the Selectee’s experience
and qualifications based on her observations of her as a collateral duty EEO Counselor for several
years and her detail in the CREO. Id. Further, SO affirmed that during these stints, the Selectee
was a team player, displayed outstanding interpersonal and communication skills, and volunteered
to assist with extra work. Id. By contrast, SO noted that Complainant would have needed the
mandatory 32-hour EEO Counselor training and certification while the Selectee already had those
credentials. Id. at 4-5. As a result, SO selected the Selectee.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way
Complainant can establish pretext is by showing that her qualifications are observably superior to
those of the Selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one
method and is not the only way Complainant may establish pretext as to her non-selection claim.

As Complainant chose to withdraw her hearing request, the Commission does not have the benefit
of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission finds
no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's
actions. Complainant has not shown that her qualifications for the position were plainly superior
to those of the selectee. In this case, the Selectee had attributes that justified her selection. In the
absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. at 259. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency's reasons were not the real reasons and that the
Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry
this burden. As a result, the Commission finds that Complainant has not established that she was
subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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.

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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

December 19, 2019
Date