[Redacted], Deandra C., 1 Complainant,v.Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 28, 2021

Appeal No. 2020003935 (E.E.O.C. Sep. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deandra C.,1 Complainant, v. Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003935 Hearing Nos. 520-2016-00115X Agency No. BOS-12-0139 DECISION On May 27, 2020, 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 April 28, 2020 final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Development Clerk, GS-9998-05, at the Agency’s Social Security Office facility in Hartford, Connecticut. Complainant stated that she has hearing loss in both ears and relies on a hearing aid in her left ear and a cochlear implant in her right ear. In 2011, the Agency announced a vacancy for the GS-0986-5/6/7/8 Legal Assistant (Senior Case Technician) position, under Vacancy Announcement No. SM521421. Complainant applied through the Agency’s Internal Vacancies On-Line (IVOL) process. The vacancy was open to all U.S. citizens. 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. 2020003935 2 At the GS-5 level, 73 applicants were found qualified, but 27, including Complainant, were found qualified but not referred for consideration, while 45 were referred for consideration. The Agency utilized the category rating method to assess candidates. In this process, each applicant completed an online application which included a series of questions. The system then rates the applicant based on the responses to the questions. Using USA Staffing software, candidates were grouped into three categories. Candidates scoring 90 or above were placed in the Best Qualified group. Those 80 to 89 were placed in the Well Qualified group. Those scoring 70 to 79 were ranked as Qualified. The Lead Human Resources Specialist averred that she compiled the Best Qualified List by running an automated report via the USA Staffing software, which sorted candidates into three categories based on their answers to the Occupational Questionnaire. The HR Specialist stated that she screened first for veterans and then for the Best Qualified candidates. Then, the Certificates of Eligibles at each grade were developed and issued to the Selecting Official. A key duty of the Legal Assistant position was providing legal support and analyzing laws and regulations. Complainant had no legal training. The selectee had nine years of combined paralegal and legal assistant experience. The scoring of Complainant’s application was completed by computer and was based on the answers Complainant gave to the online questionnaire where several of her answers indicated she did not have any training or education in an area or that she was not considered an expert in any of the specific areas listed. Complainant received a score of 89. Only those scoring 90 or higher were placed on the Best Qualified List and given further consideration. She was notified on September 13, 2011 that her application was not referred for further consideration because her score of 89 was under the 90 cut-off. The selectee, an external applicant, scored 99. Complainant acknowledged her disability did not interfere with her ability to complete the questionnaire and there was no auditory portion of the application process. Nevertheless, Complainant claimed that the Agency’s stated reason was not legitimate because the IVOL screening mechanism was known to have anomalies in scoring. Complainant averred that she ranked among the Best Qualified candidates for a previous vacancy for the “exact same position” in 2008. That position was limited to internal candidates. The position at issue was open to all candidates and netted a larger pool of candidates. On March 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (hearing loss in both ears) and in reprisal for prior protected EEO activity when, on October 24, 2011, Complainant was not selected for the Legal Assistant (Senior Case Technician) position, advertised under Vacancy Announcement No. SM521421. 2020003935 3 The Agency notified Complainant that it had accepted her complaint for investigation but was holding her disability claim in abeyance because it should be subsumed into class action Jantz v. Soc. Sec. Admin., EEOC Appeal No. 072009019 (Jan. 4, 2011), request for reconsid. den., EEOC Request No. 0520110045 (Jan. 4, 2011). The Jantz class is defined as “all current and former employees with targeted disabilities at the Agency who, on or after August 22, 2005, have applied for promotions, appeared on a best qualified list, and have been denied opportunities for promotion.” Jantz, EEOC Appeal No. 0720090019. The Commission subsequently determined that Complainant’s complaint was not within the definition of the Jantz class action and remanded the matter for further processing. Complainant v. Soc. Sec. Admin., EEOC Petition No. 0520130554 (Sept. 22, 2015).2 At the conclusion of the 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Here, it was undisputed that Complainant’s application was not referred to the selecting official for consideration, because her score was below the cut-off score of 90 to be on the Best Qualified List and only those on the Best Qualified list were considered. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. 2 Complainant’s reprisal claim was adjudicated separately in EEOC Hearing No. 520-2014- 00016X (Apr. 2, 2014). 2020003935 4 Here, however, Complainant has failed to establish such a dispute. The record shows that the scoring was automated and based on Complainant’s responses on the questionnaire, where she indicated that she did not consider herself to be an expert or lacked the skills in certain areas. The applicant selected received a higher qualifying score and possessed years of experience as a legal assistant. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Moreover, the disputes that Complainant notes are not probative or dispositive of discrimination. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 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. 2020003935 5 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. 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 September 28, 2021 Date