[Redacted], Chris A., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2019002559 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chris A.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019002559 Agency No. DAL-18-0471-SSA DECISION On February 5, 2019, 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 5, 2019, final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discrimination in his non-selection. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist, GS-11 at the Agency’s Oklahoma City District Office in Oklahoma City, Oklahoma. On June 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex/sexual orientation2 (male/gay) when, on February 10, 2018, Complainant 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 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 2019002559 2 learned he was not selected for the Social Insurance Specialist, Claims Technical Expert position in Oklahoma City, Oklahoma, advertised under Vacancy Announcement Number (VAN) ST- 10051513-133-17-MT. Complainant stated that his third-line supervisor, Responding Management Official (RMO1), the District Manager and Selecting Official for the position at issue, and RMO2, an Area Operations Analyst who served on the interview panel, were aware of his sexual orientation since 2014, when he announced to the office that he married a person of the same sex. Both RMO1 and RMO2 admitted knowledge of Complainant's sexual orientation at the time of the selection; and RMO2 had served with him on an agency Lesbian, Gay, Bisexual, and Transgender (LGBT) Advisory Council. Complainant asserted that he has no knowledge to suggest that RMO3, a Lead Social Insurance Specialist in the office who served on the two-member assessment (interview) panel with RMO2, was aware of his sexual orientation at the time of the selection. RMO3 affirmed Complainant’s assertion. Complainant alleged that he applied for the Social Insurance Specialist, Claims Technical Expert position, and scored well enough to be interviewed but he was not one of three selectees to fill the three available vacancies. Two of the vacancies were for Title 2 (Retirement, Survivors, Disability Insurance and Medicare) work in a Title 2 Unit; and one vacancy for was for Title 16 (Supplemental Security Income (SSI)) to work in the Title 16 unit. Complainant explained that following his interview, RMO2 interviewed his supervisor and the supervisor of the other candidates. He stated that the interview panel forwarded the scored interview and supervisory recommendation forms to RMO1 without recommendation. RMO1 selected Selectee1, a male GS-11 Claims Specialist; Selectee2, a female GS-11 Claims Representative; and Selectee3, a female GS-11 Claims Specialist. Complainant stated that he later learned that the selectee for the Title 16 position scored higher than he on the SSA-45 core area of resilience. Complainant alleged that he should have been selected. He opined that he is more experienced than the three selectees, has been with the Agency longer than they have, has supervisory experience, and has received high performance appraisal ratings. Complainant stated that the Vacancy Announcement did not indicate that he should address in his SSA-45 application form the four competencies for the position, the SSA leadership competencies, or the seven core competencies listed in the position description. He stated that on his SSA-45, he detailed many accomplishments as a Claims Specialist, Technical Expert, and Operations Supervisor. He opined that among his accomplishments were comingled examples that demonstrated resilience. Complainant also stated that, before the interview, no one informed him that the interview would follow the Situation-Task-Action-Result (STAR) model instead of the Context-Challenge- Action-Result (CCAR) method. (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2019002559 3 He maintained that his region did not typically use this method in interviews. Complainant also argued that had he known he had to include case specific examples of resilience in his SSA-45, he could have supplied them. He explained that because he was on leave before the day of his interview, he was not aware the interview would take place until the day it occurred. He asserted that he was able to demonstrate resilience, the quality the interview panel stated he failed to show. Complainant explained that, as an example of the resilience, he described how he had to cover interviews for others in his unit who had unanticipated absences. Complainant stated that his non-selection was due to discrimination based on his sexual orientation because none of the selectees are gay to his knowledge. He contended that RMO1 never asked him about his spouse as he did with other employees; and that RMO1 had allowed a Christian prayer group, predominantly made up of Baptists, to meet in the office during work hours. Complainant stated his belief that Baptists do not like homosexuals. RMO1 explained that the Center of Human Resources chose him to be the Selecting Official for the subject announcements. In turn, he selected RMO2 and RMO3 to serve on the Assessment Panel; and they conducted all of the interviews. RMO1 asserted that he independently developed the interview questions and decided the points assigned to each question. RMO1 stated that he was looking for candidates with competency in the areas of technical credibility, team building, decisiveness, and resilience, all weighted equally. RMO1 asserted that he reviewed the interview notes that the interview panel provided, and the scores assigned to the candidates at the end of the process. He then made his selection based on the recommendations of each candidate’s supervisor and his evaluation of their SSA-45s. He independently reviewed the SSA-45 application forms for each referred candidate and scored them in each of the four competencies, based on the material in the SSA-45 form. He assigned Complainant five points, the maximum number, in the competency areas of technical credibility, team building and decisiveness, and zero points in the competency area of resilience. He asserted that Complainant's SSA-45 did not demonstrate or describe examples of resilience; and that Selectee3 scored 43 while Complainant scored 40, due to the fact that Complainant received a score of 0 in the area of resilience while Selectee3 received a 3. RMO1 stated that he chose the selectees for the two Title 2 position and one for the Title 16 position over Complainant. He explained that, unlike Selectee1 and Selectee2, Complainant did not have Title 2 experience; and that Selectee3 was selected over Complainant for the Title 16 position based on his overall scores. He asserted that the SSA-45 application of the three selectees all listed experience indicating resilience. RMO1 denied that he was motivated by discrimination based on Complainant's sexual orientation. He asserted that RMO2, whom he selected to interview the candidates, is a gay male. He noted that he previously selected Complainant for a temporary promotion and also selected another gay man for a temporary developmental assignment . 2019002559 4 RMO2, who asserted that he did not know how RMO1 scored the three components of the application, explained that Title 2 work experience was necessary to perform as a Technical Expert in the Title 2 unit, as Technical Experts serve as the go to for information in other units. RMO2 also noted that he did not have a personal discussion with RMO1 before the final selections, stating that Complainant did well in his interview and gave examples for each answer; and that he interviewed the supervisors of each candidate and he believed Complainant's supervisor highly recommended him, giving an example of Complainant’s resilience. RMO2 asserted that the selectee also did well in his interview and his supervisor highly recommended him as well. He also noted that RMO1 completed the selection process with the scoring of the SSA-45 forms. RMO3 provided supporting testimony; and record evidence affirms the RMOs’ explanations. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant contends that the ROI is not fully developed; that the VAN did not mention the competencies, the scoring system, the overall rating system, and the STAR rating process used by the Agency. He requests that the Commission either rule in his favor or set the FAD aside and remand the ROI back to the Agency for further development and explanation regarding why non-sanctioned assessment criteria were authorized, if indeed, they were authorized. 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 lawâ€). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 2019002559 5 (1973). He must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sexual orientation; we find that the Agency articulated legitimate, nondiscriminatory reasons for his non-selection. We also find no evidence of pretext. RMO1 explained that he selected Selectee1 and Selectee 2 over Complainant based on their Title 2 experience which Complainant lacked. Complainant did not refute this explanation, only appearing to contend his non-selection for the one opening involving Title 16 work. In that regard, RMO1 explained that based on his review assessment of the candidates interview scores, their supervisors' recommendations, and his evaluation of their SSA-45s, he selected Selectee3 over Complainant. He asserted that the difference in overall scores is due to Selectee3’s score of 43 because he scored 3 in the area of resilience; and that Complainant scored 40 due to a score of 0 in that area. To refute that explanation, Complainant argued that he did cite examples of his resilience, asserting that the interview panel used the STAR method, a system which, he contends, was unexpected and wrong, to question him during the interview; and that he was expecting the CCAR method. In addition to questioning authorization of the criteria used in the selection process, Complainant contended that the ROI was not fully developed; and that the VAN did not include the selection criteria and rating process used by the Agency. However, there is no evidence to support Complainant’s contentions. Furthermore, we find no evidence that Selectee3 was privy to any aspect of the selection process of which Complainant was deprived. Finally, we find no evidence that RMO1 in any way deviated from any Agency policy or selection procedure in order to avoid selecting Complainant for the position at issue due to Complainant’s protected class. In an effort to show pretext, Complainant stated his belief that RMO1’s religious denomination impacted the selection process, concluding that Baptists did not like homosexuals. This statement and assertion are however contradicted by the fact that RMO2, who RMO1 selected as one of two interview panel members, is gay. RMO1 also asserted that he previously selected Complainant for a temporary promotion and selected another gay man for a temporary developmental assignment. Complainant did not refute this assertion. 2019002559 6 Therefore, Complainant has presented no persuasive evidence to show that his non-selection was based on his protected class, and not his failure to demonstrate that he was the best qualified candidate for the position at issue. Moreover, Complainant has failed to present any corroborating evidence to support his allegations and conclusory statements about the alleged motive behind his non-selection. The Commission is not in the position to entertain vague and conclusory allegations that create a tenuous nexus between an adverse action and an inference of discrimination without corroborating evidence. Cumberbatch v. U.S. Postal Serv., EEOC Appeal No. 0120122253 (Oct. 11, 2012) (finding that the Complainant's assertions, made without support, were insufficient to show that the Agency's reasons constituted pretext for discrimination). Additionally, the Commission has held it "will not substitute its judgment for that of selecting officials familiar with the present and future needs of their facility and who are in a better position to judge the respective merits of each candidate, unless probative facts suggest that proscribed considerations entered into the decision-making process." Johnson-Harmon v. Dep't of Veterans Affairs, EEOC Appeal No. 0120081497, 2 (Aug. 27, 2009); Complainant v. Corp. for Nat'l & Cmty. Serv., EEOC Appeal No. 0120141382, 3 (May 13, 2016) (“a trier of fact should not substitute his judgment for a legitimate exercise of managerial discretionâ€). Furthermore, "it is not the role of the EEOC to substitute its judgment for that of the agency officials in deciding what weight to give to various factors in a selection decision." Brandenburg v. Dep't of Commerce, EEOC Appeal No. 01912921, 7 (Oct. 25, 1991). The Commission has also long held that consideration of a certain factor in the selection process is not precluded simply because the factor was not listed in the vacancy announcement, so long as the factor is "applied uniformly to all the candidates without a prohibited, discriminatory intent." Merchant-Bennett v. Dep't of Transp., EEOC Appeal No. 0120100050, 4 (Sept. 15, 2011) (citing Hodge v. Dep't of Transp., EEOC Request No. 05910048, 6 (Jan. 25, 1991)). We therefore find that there is no basis to set the FAD aside or remand the instant complaint because further development of the ROI will not likely result in a different outcome. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2019002559 7 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019002559 8 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation