[Redacted], Clayton S., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2021003832 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton S.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021003832 Agency No. PHI-20-0738 DECISION On June 28, 2021, 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 May 24, 2021 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Service Representative (Bilingual), Grade GS-8, Step 10, at the Agency’s Anacostia Field Office in Washington, D.C.2 In March 2020, Complainant applied for a Social Insurance Specialist (SIS) vacancy which was graded GS-5 with promotion potential for GS-11, at the Field Office in Alexandria, Virginia. The Agency notified Complainant that he had made the best qualified list. 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 Since, July 2020, Complainant began working at the Field Office in Martinsburg, West Virginia. 2 2021003832 In May 2020, Complainant was interviewed over the telephone by four individuals from the Alexandria Field Office: District Manager (GS-14, , Puerto Rican, age 48, male), Assistant District Manager (GS-13, Asian, Korean American, age 46, male), Operations Supervisor 1, (GS-12, Hispanic/Latino, age 50, female), and Operations Supervisor 2, (GS-12, Caucasian/Swiss, age 57, male). The Agency stated that all candidates M&D interviews had been assessed on the same factor: oral communication, interpersonal skills, and motivation. On June 18, 2020, Complainant was notified that he was not selected for the position. On July 30, 2020, Complainant contacted an EEO Counselor; the parties did not resolve the matter informally. On September 15, 2020, Complainant filed the instant formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Vietnamese American), sex (male), age (57), and in reprisal for protected EEO activity (prior activity) when, on June 18, 2020, Complainant learned he was not selected for the Social Insurance Specialist position advertised under Vacancy Announcement Number SA-1075-2549. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC 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), finding no discrimination. The instant appeal followed. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). We consider Complainant’s non-selection claim in accordance with the three-part evidentiary test from the U.S. Supreme Court. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish a prima facie case that the raised bases had been unlawfully considered in the Agency’s non-selection decision. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). If a prima facie case is established, the Agency is to articulate legitimate and nondiscriminatory reasons for its actions. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 3 2021003832 If the Agency articulated a legitimate, nondiscriminatory reason for its actions, then our inquiry proceeds to whether Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). The record revealed that the Agency selected a candidate who was 37. Complainant was age 57 and approximately twenty years older than the selectee. The record also that revealed Complainant had engaged in protected activity that included filing an EEO complaint involving a prior supervisor that he subsequently withdrew. As a result, we find that Complainant made his prima facie case. Agency officials have articulated a non-discriminatory reason to explain the challenged selection action. The same panel members asked the same M&D interview questions to all four candidates, including Complainant. Both Complainant and the selectee held bachelor’s degrees. Both the selectee and Complainant had credentials proving their high level of expertise in translating between English and Vietnamese. The selectee received the overall highest score while Complainant, by just two points less, had tied for the second-highest score. Complainant scored 4 out of 5 on the M&D interview. The selectee, who was also an Asian Vietnamese American male, had scored 5 out of 5 on the M&D interview. Relative to Complainant, M&D interview panel members explained that the selectee had provided more detailed answers on questions regarding experience with service diverse customers with different needs. By contrast, the M&D interview panel members commented that Complainant rambled when responding to the same question. In sum, the selectee’s scoring higher the than Complainant on the M&D interview was a legitimate reason for Agency’s selection decision. Regarding pretext, Complainant argued that all of the members on the M&D interview panel were biased against him. In particular, Complainant stated that the Assistant Director during the M&D interview panel had previously been Complainant’s supervisor for two years at the Anacostia Field Office. Complainant accused this Assistant Director of blocking Complainant’s selection for a 2019 promotional opportunity within the Alexandria Field Office. In December 2019, Complainant sent an email to the District Director wherein Complainant protested his prior non-selection. Complainant’s email stated the Agency had subjected him to “oppression” that was “hypocritically downright unfair.” Considering these assertions, we nevertheless determine that Complainant still did not demonstrate that that the M&D interview panel members acted out of unlawful animus against him or his protected characteristics. We carefully considered Complainant’s position that the M&D interview panel had improperly discounted his lengthy service with the Agency dating back to 2001. From 2013 to 2015, Complainant had already been a GS-11 SIS at other field offices in Massachusetts and Virginia. We note that the SIS vacancy announcement here did not limit consideration to current Agency employees. Instead, the vacancy announcement at issue was clearly open to U.S. citizens who had relevant and equivalent work experiences beyond the Agency. 4 2021003832 Therefore, Complainant has not persuaded us that his qualifications were so plainly superior over the selectee that he would have been hired to the Alexandria SIS vacancy but for Agency discrimination. May v. Dep’t of Agric., EEOC Appeal No. 0120090571 (July 9, 2010) citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding no discrimination. 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. 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). 5 2021003832 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. 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 October 20, 2021 Date