0120093677
08-09-2011
Sherrie West, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Sherrie West,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093677
Agency No. NY-080746-SSA
DECISION
On August 26, 2009, Complainant timely filed an appeal from the Agency’s
July 30, 2009, final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the Agency correctly found that Complainant
did not establish that she was subjected to discrimination based on age
and reprisal when she was not selected for a GS-7 Claims Representative
position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Service Representative, GS-8, at the Agency’s field office in Egg
Harbor Township, New Jersey. Report of Investigation (ROI), at 5. In
April 2008, Complainant applied for a Claims Representative position,
GS-7, under vacancy announcement number 189010 at the Agency’s Egg
Harbor and Rio Grande locations. The GS-7 position, while a downgrade,
apparently had promotion potential.
As part of the application process, Complainant and other applicants
responded to assessment questions scored by an Office of Personnel
Management (OPM) computer system.1 Id. at 6. Complainant scored a 93
on the assessment; however, the Agency’s human resource specialist did
not place her on the best qualified list (BQL) for the GS-7 certificate
for either location. Id. For the Egg Harbor vacancy, the human resource
specialist placed applicants with the top 15 scores on the BQL to have
an opportunity to be selected. Id. The top 15 computer scores ranged
from 93 to 98, and an applicant who scored 93 was placed 15th on the
list. Id. at 7. Other applicants, including Complainant, who scored 93
were not placed on the BQL because of the Agency’s tie-breaking system.
To break a tie among applicants having equal scores a computer generates
a random number which it matches against the last or second to last
digit of an applicant’s social security number. Id. The applicant’s
digits that are closest to the random number without going over will
be listed first ahead of other applicants with the same scores. Id.
The result is that while several applicants may have the same score,
only the applicant(s) selected randomly will be placed on the BQL.
For the Rio Grande location, applicants with the top 10 computer scores
were chosen to be on the BQL, which ranged from 94 to 97. Id. The
selectee for the Rio Grande location scored a 97. The two selectees
for the Egg Harbor location scored 96 and 98, respectively, on the
scored assessment. ROI, Ex. 8, at 5. All three selectees were external
candidates and new Agency employees. All selectees were below the age
of 30. Id. at 5.
On September 22, 2008, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of age and
reprisal for prior protected EEO activity when she was not selected
for the position of Claims Representative, GS-7, under vacancy number
189010. 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 decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged. Specifically, the Agency found that it articulated legitimate,
nondiscriminatory reasons for its actions; namely, that Complainant failed
to score high enough on assessment questions scored by OPM’s computer
system to be placed on the BQL for selection to the position. The Agency
found no evidence of pretext.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she had demonstrated that
she is a very competitive candidate for a promotion to a GS-9/11
vacancy. Complainants Appeal Brief, at 5. Complainant contends that she
applied for a downgrade to a GS-7 position and competed against external
candidates with less experience. Id. Complainant contends that the
selection panel thought that one of the selectee’s answers appeared to
be coached by a family member that worked for the Agency. Id. Complainant
also contends that a selection panel member said that one selectee
gave an “impression of youth . . . and had energy and drive.”
Id. at 6. Therefore, Complainant contends that youth was a factor in
the selection process. Id. Complainant also contends that the Report
of Investigation is incomplete because it did not provide the names and
ages of all the applicants for the position. Id. at 7.
ANALYSIS AND FINDINGS
Standard of Review
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). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (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”).
Disparate Treatment
To prevail in a case 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). She must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). 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 Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec.14, 1995).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on age and reprisal, we find that the Agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions; namely, that the applicants were assessed and scored by OPM
in an automated process, and that a tie in the scoring was broken by a
random number generator. Because the Agency has proffered legitimate,
nondiscriminatory reasons for the alleged discriminatory events,
Complainant now bears the burden of proving by a preponderance of
the evidence that the Agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
Agency's preferred explanation is unworthy of credence. Burdine, 450
U.S. at 256.
In attempt to show pretext, Complainant contends that she had
more experience than the selectees. Complainant also contends
that the selection panel was looking for youth in the selection
process. Notwithstanding Complainant’s contentions, there is no dispute
that Complainant scored lower on assessment questions scored by OPM’s
computer system than other applicants, including all the selectees. As
such, Complainant was not placed on the BQL, and therefore was not
evaluated by the Agency’s selection panel. Complainant’s chief
complaint seems to be that she was excluded from further consideration
by the tie-breaking process. In the absence of any evidence from which
to infer that the tie-breaking process took the applicants’ ages into
account,2 the Agency’s use of such a process does not support a finding
of pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, and for the forgoing
reasons, we AFFIRM the Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 request or opposition must also include
proof of service on the other party.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 2011
Date
1 The record contains a copy of the assessment questions that Complainant
and other applicant’s responded to. ROI, Ex. 9-3.
2 We note in this regard that the final digits of an individual’s
social security number, unlike the first sets of digits, do not provide
any indicia of when the number was issued, and therefore cannot be used
to determine the individual’s approximate age.
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0120093677
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093677