Laura B.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 19, 2018

0120171442 (E.E.O.C. Nov. 19, 2018)

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

Laura B.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171442

Agency No. HQ-05-0174

DECISION

On March 10, 2017, 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
February 10, 2017, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency discriminated against Complainant based on her age, religion, and sex when
it did not select her for the Leadership Development Program, the UNIX Boot Camp, and the
position of a Lead IT Specialist.

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.
0120171442

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an IT Specialist at the
Agency’s Office of Telecommunications and Systems Operations, Division of Internet/Intranet
Applications Support, Internet/Intranet Connectivity Services Branch, UNIX Services
Administration Team, in Woodlawn, Maryland.2

In October 2003, Complainant completed an Individual Development Plan (IDP) listing her
desired training. In 2004, Complainant applied for the Agency’s Leadership Development Program
(LDP), and was not accepted. She stated that her first line supervisor (S1) (age 37, Baptist, male)
gave her “poor marks” on the leadership related categories. Complainant also stated that she was
not selected to attend the UNIX Boot Camp, despite the fact that her second line supervisor (S2)
(age 50, Catholic, female) asked that she be given priority consideration for the training.

In January 2005, the Agency announced a vacancy for a Lead IT Specialist (Announcement No.
K-1943), and Complainant applied for the position. The Agency determined that Complainant, and
two other applicants, were best qualified and interviewed them for the position. S1 led the
interview panel with two other officials, and they recommended the selectee (age 39, Muslim,
female) for the position. The Associate Commissioner (AC) (age 50, Methodist, male) was the
selecting official, and concurred with the interview panel’s recommendation, and made the
selection.

On February 25, 2005, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of sex (female), religion (Muslim), and age (61) when:

1. on November 4, 2004, her managers did not honor her IDP, and she was not selected
for the LDP, which would have resulted in a promotion;

2. on November 19, 2004, she was not selected for the UNIX Boot Camp; and

3. on or around January 14, 2005, she was not selected for the promotion position of
Lead IT Specialist.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ).3 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).

2 Complainant has since retired from the Agency.

3 The Agency stated that Complainant raised claims that were similar to the claims in a class action
complaint. The Agency completed the investigation, but held it in abeyance pending a decision in
the class action complaint. The Agency provided Complainant with the ROI in November 2016.
0120171442

3
The decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

The Agency determined that Complainant did not establish a prima facie case of discrimination
based on her age, religion, or sex, for claim 1; or based on her religion, or sex for claim 3. The
Agency found that Complainant established a prima facie case of discrimination based on age,
religion, and sex for claim 2; and based on age for claim 3.

The Agency then found that the management officials articulated legitimate, nondiscriminatory
reasons for their actions. For claim 1, the selecting official stated that Complainant was not
included on the list of highly qualified applicants for selection. The LDP had a three-part selection
process; the scores from the first two parts are added to determine which candidates are forwarded
to the third part. Complainant’s scores for phases 1 and 2 were not high enough to advance to the
final phase.

With regards to claim 2, Complainant was not selected for the UNIX training because she had
already taken the training within the past 5 years. For claim 3, AC stated that Complainant was not
recommended for the position because her responses during the interview were not as strong as
the other candidates. Specifically, Complainant only spoke about one project, and was not able to
sufficiently address questions about different operating system environments. AC added that the
selectee’s responses were “strong” with specific examples, showing that she had the knowledge,
skills, and experience for a leadership position.

The Agency then determined that Complainant had not shown by a preponderance of the evidence
that the Agency’s reasons were pretextual. For claim 1, Complainant alleged that S1 gave her
“poor marks,” but the record shows that he provided a positive score on her leadership potential.
With regards to claim 2, Complainant only asserted that management “plays games with her.” For
claim 3, Complainant asserts that the selectee never managed a project, and has not worked at the
Agency long enough, but Complainant did not demonstrate that her qualifications were plainly
superior to the selectee’s qualifications. The Agency concluded that there was no evidence
showing that the Agency discriminated against Complainant based on her age, religion, or sex.

Complainant filed the instant appeal, and submitted a statement in support of her appeal on April
5, 2017. The Agency filed an opposition brief on September 25, 2017.

CONTENTIONS ON APPEAL

On appeal, Complainant alleges that the information that she learned at the UNIX Boot Camp was
not reinforced for approximately five (5) years because she was not invited to team meetings, and
kept out of the information loop. Additionally, Complainant claims that some of her teammates
who attended the training with her were allowed to attend again.

0120171442

4
With regards to her interview, Complainant alleges that she was kept uninformed about work
processes and functionality of her team, and requested to move to the same floor as the rest of her
team. She stated that her requests were denied, and that since she was kept out of the loop, it was
a “wonder” that she could answer any of the interview questions intelligently. Complainant also
stated that one year, she was fasting during Ramadan, which was during the Christmas season that
year. She stated that S2 “scolded” her, when stating that Ramadan was during Easter, and implied
that Complainant was not a Muslim. Complainant added that others then ridiculed her for her dress
and eating habits.

The Agency asserts that its final decision properly found that there was no discrimination, and
requests that the Commission affirm its decision.

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”).

As an initial matter, we find that the Agency’s opposition brief is untimely. The Commission’s
regulations provide that “any statement or brief in opposition to an appeal must be submitted to
the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if
no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29
C.F.R. § 1614.403(f). The Agency’s deadline for submitting its opposition brief was in May 2017,
and it submitted a brief on September 25, 2017, well past the deadline, and as such, we will not
consider the Agency’s opposition brief.

Additionally, Complainant alleges that S2 “scolded” her, which led to additional ridicule from her
coworkers. It is not clear if Complainant is raising this incident as a discrimination claim, but we
note that the Commission cannot address an issue raised for the first time on appeal. As such, we
will not address this incident in the instant appeal.

Disparate Treatment

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).
0120171442

5
For Complainant to prevail, she 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
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 her 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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her age, religion, and sex, we find that the Agency proffered legitimate, non-discriminatory reasons
for its actions.

For claim 1, the selecting official explained that the first part of the LDP includes an applicant
statement, and the second part is a supervisor evaluation of leadership potential. Complainant’s
combined score for the first and second parts was 27 points, and the cut-off score to advance to
next level was 41 points. While Complainant alleges that S1 gave her a “poor mark” in leadership,
the record shows that he gave her a score of 4, out of 5, for Leadership Potential. With regards to
claim 2, S2 stated that she informed Complainant that she did not need to take courses that she had
already taken within the past five (5) years.

For claim 3, S1 stated that Complainant did not perform well during her interview. On May 10,
2005, S1 wrote AC a detailed memo about the interviews with the candidates. S1 stated that the
selectee distinguished herself as an outstanding candidate, and was the only candidate who could
name and describe eight different system environments. In contrast, S1 stated that Complainant
was the only candidate who could not name any of the system environments. Additionally, S1
stated that while Complainant was able to describe her current role as a technician, she was unable
to contrast her position with that of a team lead; and she did not state if she was prepared to interact
with external components. AC stated that he reviewed the packet of information, and determined
that the selectee’s responses were “solid,” and that she provided specific examples from a variety
of projects.

We find that Complainant has not shown that the reasons are pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
0120171442

6
On appeal, Complainant alleges that other teammates who attended the UNIX Boot Camp training
with her were allowed to attend again. However, Complainant has not provided any details, or
evidence showing that these teammates attended the Boot Camp again.

For claim 3, Complainant asserts that she was did not perform well during her interview because
she was “kept out of the loop,” and her requests to move closer to her team were denied. However,
we again find that Complainant has not provided evidence, and only made bare assertions, which
are insufficient to prove pretext for discrimination. In a non-selection case, pretext may be found
where the complainant’s qualifications are plainly superior to the qualifications of the selectee.
See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser v. Dep't of Labor, EEOC
Request No. 05940058 (Nov. 2, 1995). In this case, Complainant has not argued, nor shown, that
her qualifications for the Lead IT Specialist position were plainly superior to those of the selectee.
Accordingly, we find that Complainant has not proven that the Agency discriminated against her
based on her age, religion, or sex.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
was not discriminated against based on her age, religion, or sex when it did not select her for the
Leadership Development Program, the UNIX Boot Camp, or the position of a Lead IT Specialist.

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.
0120171442

7
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.

0120171442

8
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

November 19, 2018
Date