[Redacted], Isidro A., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000969 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isidro A.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000969 Hearing No. 540-2016-00079X Agency No. SF-15-0606-SSA DECISION On October 25, 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 October 1, 2019 final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Representative, GS-11, at the Agency’s Downtown District Office in Phoenix, Arizona. Complainant also served as a Payee Liaison. On June 17, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), sexual orientation (gay), and reprisal for prior protected EEO activity (union grievance) when it failed to select him for a Supervisory Social Insurance Specialist position under Vacancy Announcement # SC-1298608-15-JLS. The Agency accepted Complainant’s claim for investigation. 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. 2020000969 2 During the investigation, Complainant stated that he is more experienced than the candidate selected (Selectee) for the position. Also, Complainant stated that Selectee is friends outside of work with one of the interview panel members and is the best friend of the sister of the Selecting Official (S1). Further, he stated that S1 is a devout Jehovah’s Witness and that her religion is against the gay and lesbian lifestyle. Complainant stated that S1 demonstrated nonverbal disapproval of his lifestyle by turning away or not commenting when Complainant would talk about his same sex partner. In addition, Complainant stated that the unit tends to promote females rather than males. The selecting official, S1, stated that there were eleven total candidates, but only eight candidates were interviewed. Complainant was among those interviewed. S1 stated that an interview panel interviewed the candidates who were “recommended” or “highly recommended” from their office. S1 stated that she and the District Manager (DM1) were on all interview panels and only their input was considered. Another supervisor (S2) sat on some panels to develop hiring experience. S1 stated that Selectee identifies as female, heterosexual. She stated that she chose Selectee because she was “highly recommended” by her immediate supervisor, S2, and she has excellent interpersonal, leadership, and writing skills. S1 stated that Complainant was only “recommended” by S2 because he “needs work on interpersonal skills.” S1 stated that Complainant is not always tactful and professional, and those skills are needed in a leadership position. S1 stated that Selectee was viewed as a leader by her peers. S1 stated that she did not discriminate against Complainant and she treats all people with dignity and respect. DM1 stated that both Complainant and Selectee did well during the interview, but Selectee answered some questions better. DM1 stated that her personal observations of the candidates’ quality of work, interpersonal skills, and oral and written communication skills also went into her input. DM1 stated that she also considered that Complainant’s immediate supervisor, S2, stated that he needed to improve his interpersonal skills. DM1 stated that others also stated that Complainant did not always censor his comments in group settings, which was sometimes offensive and seen as unprofessional. At the conclusion of the 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) or an immediate final agency decision. Complainant requested a hearing. Following an EEOC hearing, on September 5, 2019, the AJ issued a bench decision finding no discrimination.2 The AJ found, “Complainant has not proven his qualifications were substantially superior to those of [Selectee].” The AJ found that the interviewing officials concluded that Complainant performed well in his non-supervisory (Claims Specialist or Payee Liaison) positions but was not ready for a supervisory position. Further, the AJ found that Complainant failed to prove that the Agency’s actions were motivated by discriminatory factors. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 On September 17, 2019, the assigned AJ issued an Order Setting Forth Additions and Corrections to Bench Decision. The Order did not change the AJ’s finding of no discrimination. 2020000969 3 The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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). 2020000969 4 Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on sex3 or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that it interviewed eight of eleven candidates for the supervisory position. There was at least a two-member interview panel, consisting of S1 and DM1, and sometimes a three-member panel, including S2, for developmental hiring experience. The Agency stated only input by S1 and DM1 was considered for the selection. The Agency selected a candidate who identifies as heterosexual and female. S1 stated that she chose Selectee because she was “highly recommended” by her immediate supervisor, S2, and she had excellent interpersonal, leadership, and writing skills. S1 stated that Complainant was only “recommended” by S2 because he “needs work on interpersonal skills.” S1 stated that Complainant is not always tactful and professional, and those skills are needed in a leadership position. S1 stated that Selectee was viewed as a leader by her peers. S1 added that she did not discriminate against Complainant and she treats all people with dignity and respect. DM1 stated that both Complainant and Selectee did well during the interview, but Selectee answered some questions better. DM1 stated that her personal observations of the candidates’ quality of work, interpersonal skills, and oral and written communication skills also went into her input. DM1 corroborated the need for Complainant to improve interpersonal skills so as not to come across as offensive or unprofessional at times. We find that Complainant failed to prove, by a preponderance of the evidence, that the selection decision was influenced in any way by discriminatory factors. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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. 3 The Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). See also, Bostock v. Clayton County, 140 S.Ct. 1731, 1741 - 1742 (2020). 2020000969 5 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. 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. 2020000969 6 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 June 3, 2021 Date