Mao P.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 15, 2016

0120142164 (E.E.O.C. Nov. 15, 2016)

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

Mao P.,1
Complainant,

v.

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

Appeal No. 0120142164

Hearing No. 520-2013-00101X

Agency No. NY-12-299-SSA

DECISION

Complainant filed an appeal from the Agency’s final order dated April 18, 2014, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

The record indicates that Complainant filed her complaint on April 24, 2012, alleging
discrimination based on age (over 40) and in reprisal for prior EEO activity when on
December 23, 2011, she was not selected for the position of Supervisory Contact
Representative (Bilingual), GS-962-11/12, under vacancy announcement number SN-495007-

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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11-ROII-226.2 Upon completion of the investigation of the complaint, Complainant requested
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
On March 25, 2014, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period, Complainant was
employed as a Lead Contact Representative (Bilingual)/Technical Assistant (Bilingual), GS-
962-09, in San Juan Teleservice Center (TSC), New York Region, San Juan, Puerto Rico. In
July, 2011, she applied for the supervisory position, GS-11/12, at issue but was not selected on
December 23, 2011.

Complainant’s TSC Manager, a selecting official, stated that she reviewed candidates’
applications, contacted the candidates’ supervisors, compared the candidates, and did not
interview candidates. The Manager indicated that for the position at issue, she was looking for
someone with proven communication skills in English and Spanish and someone who could
handle stressful situations and reacted to change in a positive manner; who had good teamwork
skills and good organizational and time management skills with good knowledge of Agency
policies and procedures; and who was computer oriented.

2 In her complaint, Complainant also alleged discrimination based on disability. It is noted that
this disability basis has been bifurcated by the Agency and has been subsumed into the class
complaint of Jantz v. Social Security Administration.
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The Manager stated that Complainant was found qualified for the position and was her third
choice among all candidates. Specifically, the Manager stated that she contacted
Complainant’s supervisor who told her that Complainant needed to improve her English
grammar and writing skills. Complainant’s supervisor acknowledged the foregoing statement.

The Manager indicated that she selected the selectee, a Social Insurance Specialist (Claims
Representative Bilingual), GS-105-11, for the GS-12 position at issue because she, among
other awards, received the Commissioner Citation award and a Quality Step Increase which
were very difficult to achieve; she had a Master’s Degree in Human Resources, whereas
Complainant had a bachelor’s degree; and her supervisor recognized her as a leader, team
player, facilitator, self-motivated individual, and one who had a proven ability to transmit
complex information in a simple way and who had excellent communication skills at all level.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for not selecting Complainant for the position.
Furthermore, Complainant failed to show that her qualifications for the position were plainly
superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant failed
to show that the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests may be submitted via regular mail to P.O. Box 77960,
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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 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

November 15, 2016
Date