Shanel G.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0520180404 (E.E.O.C. Sep. 28, 2018)

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

Shanel G.,1
Complainant,

v.

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

Request No. 0520180404

Appeal No. 0120161587

Hearing No. 440-2013-001201X

Agency No. ODAR-12-0552-SSA

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120161587 (April 18, 2018). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In her underlying complaint, Complainant claimed that she was discriminated against on the bases
of her race (African-American), and color (black) 2 when:

1. The Agency cancelled the vacancy announcement for a Supervisory Case Manager
position in the Chicago National Hearing Center; and

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 Complainant added the basis of color during the investigation of the complaint.
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2. On April 20, 2012, Complainant was not selected for the 120-day temporary
Supervisory Case Manager detail position in the Chicago National Hearing Center.

The EEOC Administrative Judge (AJ) granted the Agency’s Motion for a Decision Without a
Hearing. The AJ found that no discrimination occurred with regard to both claims. The AJ stated
that the Administrative Officer recommended to the Director that the National Hearing Center
close the vacancy announcement at issue in claim (1) and open a temporary Supervisory Case
Manager detail position. The AJ noted that the Administrative Officer believed that due to the
office undergoing a considerable transitional period and that the most qualified candidate could
not be selected, he thought it best to not fill the permanent position at that time. The AJ further
noted that the Administrative Officer also considered it better to permit the new permanent
Administrative Officer to recommend a candidate for the permanent Supervisory Case Manager
position.

With regard to the selection for the detail, the AJ observed that the Administrative Officer stated
that he did not recommend the selection of Complainant because she was not the best qualified
candidate. According to the Administrative Officer, Complainant’s Statement of Interest was
good, but not among the best qualified group of candidates. The Administrative Officer asserted
that he had worked with Complainant and he never observed any leadership qualities. With respect
to the selectee, the AJ stated that the Administrative Officer noted that she presented her experience
and accomplishments in her Statement of Interest, showed a consistent, demonstrated ability for
strong organizational skills and leadership qualities, and had spent a considerable amount of time
as a Lieutenant Colonel in the Army. The Agency implemented the AJ’s decision in its final order.

On appeal, the Commission affirmed the Agency’s final order. We found that the Agency
articulated legitimate, nondiscriminatory reasons for its actions that were not shown to be
pretextual. We stated that substantial evidence of record supported the AJ’s conclusions that the
selection was based on the superior performance of the selectee at the interview and the fact that
the application package of the selectee more effectively highlighted her strengths and
accomplishments.

In her request for reconsideration, Complainant challenges the Administrative Officer’s assertion
that he wanted to allow a permanent Administrative Officer to recommend a candidate for the
permanent Supervisory Case Manager position. Complainant argues that the Administrative
Officer was comfortable with recommending the selection up until he learned that he could not
recommend the hiring of his preferred candidate. Complainant also points to the selecting
official’s statement that the candidates were not perceived as warranting a recommendation as
being inconsistent with the Administrative Officer’s focus on administrative considerations as the
reason for the cancellation of the vacancy announcement.

With regard to the selection for the detail, Complainant contends that she was a more qualified
candidate than the selectee. According to Complainant, her Statement of Interest highlighted her
many accomplishments, including her training and mentorship experience.
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Complainant states that she has ample experience working with the relevant software, more than
a decade of supervisory experience and a relevant master’s degree. Complainant argues that she
possesses the decision-writing oversight skills performed by a Supervisory Case Manager.
Complainant maintains that the selectee barely discussed her experience with the Agency and had
limited experience in certain areas relevant to the position at issue.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request
No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact
or law, or will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not presented any persuasive evidence to support reconsideration of the
Commission’s decision. Complainant has failed to establish that the Agency’s reasons for the
cancellation of the vacancy announcement and her nonselection for the detail were pretext intended
to hide discriminatory motivation.

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120161587 remains the Commission’s
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.

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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, 2018
Date