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

Equal Employment Opportunity Commission

Nov 6, 2018

0120172593 (E.E.O.C. Nov. 6, 2018)

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

Miriam B.,1
Complainant,

v.

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

Appeal No. 0120172593

Hearing No. 550-2017-00009X

Agency No. SF160302SSA

DECISION

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 November 21, 2017 final
decision concerning an equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant was an applicant for a position in the Agency’s Oakland,
California office.

On March 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (unspecified) and age (over 40)2 when, on or around

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.

2 Complainant did not respond to the EEO Investigator’s requests for either her birthdate or the
nature of her disability. Complainant’s submissions did not identify either her age or disability.
However, we will presume, for purposes of analysis only and without so finding, that
Complainant is an individual with a disability.
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December 18, 2015, Complainant became aware that she was not selected as a Case Technician
(Legal Assistant/Office Automation), a position advertised under Vacancy Announcement
Number SCHA-SC1301537-15-SPP.

The following pertinent facts were established during the investigation of the complaint.

On January 22, 2015, the Agency posted Vacancy Announcement Number SCHASC1301537-
15-SPP to recruit entry-level applicants for Region 9, which includes offices in American
Samoa, Arizona, California, Guam, Hawaii, Nevada and Saipan. The announcement included
several entry-level job categories, specifically: Contact Representative, Debtor Contact
Representative, Legal Administrative Specialist, Social Insurance Specialist, Case Technician
(Legal Assistant/Office Automation), and Legal Assistant (Senior Case Technician). The
announcement specified the qualifications necessary for each position. The announcement was
open for applications until September 30, 2015, the end of fiscal year (FY) 2015, when the
announcement expired.

On January 23, 2015, Complainant was notified by email that the Agency’s San Francisco
(Region 9) Selective Placement Program (“SPP”) was open for applications for fiscal year 2015.

The SPP assists qualified individuals with disabilities to obtain employment under the Agency’s
Schedule A hiring authority (appointments for individuals with intellectual disability, severe
physical disability, or psychiatric disability). Only applicants with Schedule A letters from a
medical or vocational professional were eligible for consideration. Schedule A letters must state
that the applicant is eligible for Schedule A hiring authority under 5 C.F.R. 213.3102(u) due to a
severe physical, psychological or intellectual disability, and identify the nature of the applicant’s
disability. Complainant was a qualified applicant under Schedule A as she has received a
monthly benefit due to her disability since January 2015. The SPP announcement explained the
nature of the program, as follows:

When you submit your application for the Selective Placement Program, we will
review your Schedule A eligibility and your qualifications for your desired
position(s). If you meet all requirements, you will be placed into the Selective
Placement Program. When a desired position becomes available at a location you
have indicated, we will submit your application to that office for the hiring
official’s consideration.

On July 20, 2015, Complainant applied under the SPP for a position as a Case Technician (Legal
Assistant/Office Automation) in the Agency’s Oakland, California office. On July 22 and 23,
2015, Complainant learned that her application was incomplete due to missing documents. On
September 28, 2015, Complainant resubmitted the documents in question, which completed her
application package. The SPP announcement expired on September 30, 2015. On December 18,
2015, Complainant learned she had not been selected for the position in question.

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Beginning on December 2, 2015, and through December 18, 2015, Complainant inquired by
email at least seven times about the status of her application. She received no reply until
December 18, 2015, when she learned that no Legal Assistant position was available in the
Oakland office during FY 2015, and she had therefore not been referred for consideration.

The Supervisory Project Manager, GS-14, Staffing and Classification Team, San Francisco
Regional Office (over 40, disability unknown) (hereinafter referred to as “RMO1”) stated that
from January 22, 2015, to September 30, 2015, anyone with a qualifying Schedule A designation
could apply to be considered for entry level positions within Region 9. Applicants were required
to identify which locations and positions they wished to be considered for, as part of their
applications. RMO1 stated that during the vacancy period, hiring managers from Region 9’s
various offices could request certification lists for qualified applicants to fill open entry-level
positions. Applicants who had selected that location were then referred to managers for
consideration. RMO1 testified that hiring managers typically requested certification lists early in
the process to fill their open positions as soon as possible.

RMO1 stated that Complainant applied in July 2015, which was late into the 2015 fiscal year,
and only selected the Oakland office as a location for which she wished to be considered. RMO1
stated that the only list of eligible applicants for a Legal Assistant in the Oakland office during
FY 2015 had been published on February 24, 2015, approximately five months before
Complainant submitted her application on July 20, 2015. Following the February 2015 request,
the Oakland office did not seek any more candidates to fill the Legal Assistant role. Therefore,
by the time of Complainant’s application, Complainant was not referred because the Oakland
office did not request a referral list. Furthermore, RMO1 stated that the February 24, 2015 list of
eligible SPP candidates was ultimately recalled to Human Resources (HR) as unused because the
Oakland office did not end up filling any position using that list. RMO1 stated that
Complainant’s non-selection had nothing to do with her protected classes.

After an 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). 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), finding no discrimination.

The instant appeal followed. On appeal, Complainant provided numerous lengthy appeal
statements arguing that the Commission should find in her favor.

ANALYSIS AND FINDINGS

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
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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”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, even if Complainant established a prima facie case, the Agency has articulated legitimate,
non-discriminatory reasons for its action. Specifically, Complainant stated that she was only
interested in working at the Oakland, California office. At the time of her application, the
Oakland office was no longer seeking to fill Legal Assistant (Case Technician/Office
Automation) position. Based on the record, the Oakland office had previously obtained a list of
eligible applicants for the Legal Assistant position on February 24, 2015, approximately five
months before Complainant submitted her application on July 20, 2015. However, the Oakland
office ultimately decided not to use the list, and did not fill the role, either in February 2015, or
around the time of Complainant’s application in September 2015. Aside from Complainant’s
contentions, there is no evidence to support her assertion that she was discriminatorily non-
selected.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.
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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.
Carlton M. Hadden, Director
Office of Federal Operations

November 6, 2018
Date