Nathaniel S.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 2, 2016

0120141848 (E.E.O.C. Nov. 2, 2016)

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

Nathaniel S.,1
Complainant,

v.

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

Appeal No. 0120141848

Hearing No. 430-2012-00305X

Agency No. ATL-12-0045-SSA

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated March 19,
2014, finding no discrimination concerning his 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 decision
finding no discrimination.

BACKGROUND

In his complaint, filed on January 12, 2012, Complainant alleged discrimination based on age
(over 40), race (Black), and sex (male) when on October 16, 2011, he was not selected for the
Supervisory Social Insurance Specialist (Operations Supervisor (SO)), GS-0105-12, position,
advertised under Vacancy Announcement Number SG-512111-11-BC. After completion of the
investigation of the complaint, Complainant requested a hearing but later withdrew the request.
The Agency then issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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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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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. At the time of the incident, Complainant was a GS-11 Claims
Representative at the Agency’s Fayetteville Field Office, in Fayetteville, North Carolina.
Complainant applied for the Supervisory Social Insurance Specialist (Operations Supervisor
(OS)), GS-0105-12, position, advertised under Vacancy Announcement Number SG-512111-
11-BC. He was one of 11 eligible candidates but was not selected.

Complainant’s first-line supervisor, an OS, GS-12 indicated that when the selecting official for
the position at issue gave her a form that asked for an assessment of Complainant’s
qualifications for the OS position at issue, she did not recommend him because his leadership
skills were not compatible to the OS position. Specifically, the supervisor stated that:
Complainant was not a team player; he was not committed to duty; and he put his coworkers
under undue hardship by taking unscheduled leave. Although Complainant indicated that he
held the OS, GS-12 position from 1992 to 1995 in the New York region, the supervisor
indicated that he had not been an OS recently while she was his supervisor since June, 2009.

The selecting official, the Assistant District Manager, Fayetteville Field Office, stated that for
the OS at issue, she was looking for a candidate who possessed extensive job knowledge and
who was able to lead and direct people, to manage workloads effectively, and to represent the
Agency in a supervisory and management capacity. The selecting official indicated that she
decided to select the selectee, 35 years old, Native American female because: she was selected
for the Atlanta Management Leadership Development Program from July, 2008 to May, 2009;
she served in the position of an Assistant District Manager in the Raleigh and Lumberton Field
Offices; she served in the position of Social Insurance Specialist-Technical Expert in the
Special Disability Cadre for five years; she was an OS, GS-12 in the Lumberton Field Office
recently from May, 2009, to January, 2011; and she was highly recommended by her
supervisor. The selecting official stated that she did not discriminate against Complainant
regarding the nonselection; rather she could not select him because his supervisor did not
recommend him for the position at issue.

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After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that his 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 has failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision 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,
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).

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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 2, 2016
Date