Selina S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 4, 2018

0120160844 (E.E.O.C. Apr. 4, 2018)

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

Selina S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120160844

Agency No. SF-15-0068-SSA

DECISION

On January 6, 2016, 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
December 3, 2015, final decision concerning her 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. Our review is de novo.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Case
Technician (SCT), GS-8, at the Agency’s work facility in San Jose, California.

On December 10, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American) and age (59) when
on September 30, 2014, she learned that she was not selected for the position of Lead Case
Technician, GS-9.

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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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 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).

The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The Agency noted that Complainant stated that she applied for the position of Lead
Case Technician, GS-9, advertised in July 2014. Complainant asserted that she was found
qualified for the position, was interviewed, and was not selected. Complainant stated that the
selectee was younger and of a different race. The Agency stated that the selectee was Hispanic
and born in 1976. Complainant argued that she has more than seven years of diverse experience
working as a SCT at the GS-8 level, has good interpersonal skills, and has eighteen months of
experience as a supervisor for the Department of Veterans Affairs. The Agency stated that
Complainant claimed to have two years of experience at the GS-11 level working as both a
supervisor and as a Veterans Service Representative of the Department of Veterans Affairs. The
Agency noted that Complainant maintained that it takes being friends with the right people to get
promoted at the Agency.

According to Complainant, the selecting official, who is Hispanic, was biased in favor of the
selectee based on the selectee’s age and race. Complainant argued that the selectee’s sister also
works in the San Jose office and three of the last four available promotions in the office were
awarded to the selectee or her sister. Complainant asserted that the selectee had been chosen for
an Administrative Assistant position several years before, and a year before the selection at issue
indicated she was going to leave that job because it was too much work. Complainant argued
that the selectee was preselected for the position at issue based on her race and age. Complainant
stated that the selectee had fewer years of experience than her. According to Complainant, she
supervised a staff of thirty individuals when she was with the Department of Veterans Affairs
and the selectee in contrast has no government experience beyond her work in the San Jose
office. Complainant asserted that no African-American candidates have been promoted in her
five years with the San Jose office and the Hispanic managers favor Hispanic candidates.

The selecting official stated that she and another official interviewed the candidates, asking each
of them the same questions, scored the responses, and discussed each candidate after each
interview. According to the selecting official, Complainant ranked in the bottom third of those
interviewed. The selecting official stated that Complainant did not demonstrate that she assumed
leadership roles or that she was ready to do so. The Agency noted that the selecting official
stated that Complainant did not provide recent examples of training provided, nor did she
demonstrate knowledge of the disability adjudication process.

With regard to the selectee, the selecting official asserted that she chose the selectee based on her
demonstrated understanding of sequential evaluation, the basic evaluation method in the
disability program. The selecting official stated that only one other candidate was able to do this
and that the others, including Complainant, could not articulate a basic understanding of the
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sequential evaluation process. Additionally, the selecting official stated that the selectee was
involved in the call order invoicing scheduling system, and she expressed ideas about how to use
the invoicing system better. The selecting official asserted that the selectee distinguished herself
from Complainant and most of the other candidates with the quality of her responses during the
interview.

The other official involved in the interview stated that the selectee scored 46 out of a possible 50
points for her interview responses and Complainant scored 32 points. According to this official,
Complainant did not provide relevant examples of her Agency experience during her interview,
nor did she provide recent examples of mentoring or the ability to receive feedback. The official
asserted that Complainant instead offered examples of work experience with other federal
agencies, some of which were ten years old. In terms of the selectee, this official stated that she
demonstrated substantial job knowledge about the sequential evaluation process and gainful
activity, which are technical areas important to Lead Case Technician duties.

The Agency found that Complainant established a prima facie case of both race and age
discrimination. The Agency further determined that the aforementioned reasons it articulated
were legitimate, nondiscriminatory reasons for its selection decision. With respect to whether
Complainant established these reasons were pretext, the Agency found that Complainant did not
present evidence to show that she was a better candidate or that she performed better during the
interview than the selecting officials indicated. The Agency asserted that Complainant did not
offer objective evidence to support her subjective testimony that there was a bias against her
based on her race and age.

The Agency concluded that Complainant’s qualifications were not clearly superior to those of
the selectee. The Agency pointed out that although Complainant’s application reflected more
actual time served in the SCT position, the selectee’s application also presented applicable
experience, including recent service in the SCT position. According to the Agency, the selectee
served in the SCT position for two years, was promoted to the Administrative Assistant position,
had a higher level of education than Complainant and an equivalent amount of recent relevant
work experience. The Agency stated that the main difference for the selecting officials between
the selectee and Complainant was that during the interview the selectee was able to articulate an
understanding of the sequential evaluation process. As for Complainant’s argument that the
selectee was preselected, the Agency states that even if preselection occurred, the evidence
establishes that the selecting official’s decision was not motivated by race or age discrimination.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
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a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of race and age
discrimination concerning her nonselection. The Agency explained that Complainant was not
selected for the Lead Case Technician position because Complainant ranked in the bottom third
of those interviewed. The selectee had 46 points based on her interview responses and
Complainant had 32 points. The selecting official stated that Complainant did not demonstrate
that she assumed leadership roles or that she was ready to do so. The selecting official further
stated that Complainant did not provide recent examples of training provided and she did not
demonstrate knowledge of the disability adjudication process. Additionally, the selecting official
asserted that Complainant could not articulate a basic understanding of the sequential evaluation
process.

As for the selectee, the selecting official maintained that she chose this candidate based on her
demonstrated understanding of the sequential evaluation process. The selecting official stated
that the selectee was involved in the call order invoicing scheduling system, and she expressed
ideas about how to use the invoicing system better. The selecting official noted that the selectee
distinguished herself from Complainant and most of the other candidates with the quality of her
responses during the interview. We find that the Agency articulated legitimate,
nondiscriminatory reasons for its selection decision.

Complainant attempts to establish pretext by arguing that she was more qualified than the
selectee based on more years of experience, including supervisory work as a GS-11 with the
Department of Veterans Affairs. In nonselection cases such as the instant matter, Complainant
may be able to establish pretext with a showing that her qualifications were plainly superior to
those of the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995); Bauer v. Bailar, 647 F. 2d 1037, 1048 (10th Cir. 1981). Although Complainant does
have a greater number of years of experience, she did not articulate that experience to her benefit
during the interview. Rather than focusing on applicable Agency experience, Complainant
provided examples of work experience with other federal agencies, some of which were ten
years old. Complainant also has not refuted the Agency’s position that the selectee presented a
greater understanding than her of the sequential evaluation process. We find that Complainant’s
argument concerning years of experience is insufficient to establish that her qualifications were
superior. Complainant argued that no African-Americans were promoted during her five years at
the San Jose office and that three of the last four available promotions were awarded to the
selectee and her sister. We note though that there were only two African-American employees
among the thirteen GS-8 employees in the San Jose office, we discern insufficient evidence in
this argument to show that the selection decision was biased in favor of the selectee based on her
race or age.
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As for Complainant’s contention concerning preselection, we note that even assuming arguendo
that the selectee was preselected, that does not indicate discrimination occurred given that
Complainant did not establish that the preselection was based on the selectee’s race or age.

CONCLUSION

After a review of the record in its entirety it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
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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).
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

April 4, 2018
Date