Tommy R.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 8, 2018

0120160424 (E.E.O.C. Mar. 8, 2018)

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

Tommy R.,1
Complainant,

v.

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

Appeal No. 0120160424

Agency Nos. CHI-14-0640-SSA,
CHI-14-0941-SSA

DECISION

On October 26, 2015, 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
September 23, 2015, final decision concerning his 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. 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 District Manager,
GS-14, in the Agency’s District Office located in Toledo, Ohio. On September 5, 2014 and
October 18, 2014, Complainant filed EEO complaints alleging that the Agency discriminated
against him on the bases of age (60) and reprisal (prior protected EEO activity) when: 1) in
Agency No. CHI-14-0640-SSA, he was not selected for the Advanced Leadership Program
(ALP); and 2) in Agency No CHI-14-0941-SSA, he was directed to use personal leave for some
of his community service and outreach activities.

After the investigation, the Agency provided Complainant with copies of the reports of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge

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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(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 consolidated decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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). He 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). Proof of 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
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Claim 1 – Non-Selection

With respect to Complainant’s disparate treatment claim, we assume for the purposes of this
decision that Complainant presented a prima facie case of discrimination. However, we agree
with the Agency that Complainant fails to present evidence of pretext or
discriminatory/retaliatory animus on the part of the responsible management officials.

Specifically, the record shows that Complainant alleged that the Human Resources Manager
(HRM) and a supervisory Human Resource Specialist (HRS) were involved in the ALP selection
process and discriminated against him because of his age when he was not selected for the
program. Both HRM and HRS explained that Complainant did not make the Best Qualified list
and did not advance to the next stage in the application process because he scored below 18 out
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of 25 on the Leadership Traits Questionnaire (LTQ).2 Both HRM and HRS denied that age was
a factor for Complainant or any other ALP candidate. The record further establishes that the
Agency received 686 applications and, of those, only 35 individuals were selected (i.e., 5%
acceptance rate). The record also shows that of the 35 applicants selected for ALP, 13 were 40
years of age or older during the selection process.3 Upon review of the record, we find
insufficient evidence that the LTQ was developed and implemented in the selection process with
discriminatory or retaliatory motives.

We note that Complainant also asserted that the LTQ was not merit-based and disfavored older
workers because it downplayed experience at the expense of the LTQ scores, making an
argument that the LTQ had a disparate impact based on age. We agree with the Agency that
Complainant fails to show how the LTQ gives younger applicants an advantage. In addition,
upon review of the LTQ’s questions and answer key explanations found in the record, we find
that the questions are relevant to the position description and have only one correct answer.
Moreover, the record is devoid of evidence to establish a statistical disparity linked to or caused
by the implementation of the LTQ. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994
(1988) (the complainant must present “statistical evidence of a kind and degree sufficient to
show that the practice in question has caused the exclusion”). Accordingly, we find insufficient
evidence of disparate impact as alleged.

Claim 2 – Required Leave Usage

The record shows that since 1993, Complainant has been on the Board of Directors for the Area
Office on Aging (AOoA) in northwest Ohio. Complainant described the organization as
administering “an exhaustive list of programs dealing with senior food security, income
maintenance, health, safety and overall quality of life issues.” According to Complainant, during
his prior 25 years as a District Manager, he had been allowed to use official, government time for
these activities because it was part of his position description (PD). He also alleged that, in the
past, management officials authorized his use of work time for AOoA activities.

The record shows that in or about March 2014, Complainant was required to use personal leave
(rather than government time) for his AOoA outreach and service activities because AOoA was
considered an outside activity and did not involve work for the Agency.4 The record further
shows that Complainant’s supervisors made this decision after obtaining guidance from the

2 The record shows that the LTQ is comprised of 20 multiple-choice, behavior-based questions
that relate to the five leadership competencies identified in the position description and vacancy
announcement. There are also 5 questions designed to test the applicants’ written
communication skills.
3 The record does not provide any information regarding the number or demographics of the 686
applicants who passed the first stage and received qualifying scores on the LTQ.
4 Complainant asserted that the change not to cover his AOoA activities was a sudden turn
around. However, the record shows that various management officials have been pushing back
and denying Complainant’s AOoA’s activities for several years prior to March 2014.
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regional public affairs office. Management asserted that the reference to “programs-related
community activities'” in Complainant’s PD does not include every activity with any kind of
connection to work involving similar causes or serving similar populations.

Complainant asserted that his supervisor (S1A) discriminated against him when she reaffirmed a
previous supervisor’s (S1B) decision regarding the requirement to use personal leave for AOoA
activities. In addition, Complainant cited two examples of sarcastic comments made by S1A
that, he believed, were evidence of age discrimination. Complainant alleged that in response to
his request to use work time for his AOoA activities, S1A said: “[Y]ou may have done this thirty
years ago, but you're not going to do it anymore.” The second comment allegedly made by S1A
(presumably in response to Complainant’s assertion about how previous management officials
handled such requests) referred to an Area Director (AD) in the early 1980s: “[AD] is not your
Area Director . . . is not your boss.” Complainant stated that these remarks were “intended to
ridicule [his] position in this matter as well as his age” and illustrated “a strong animus to older
managers.”

S1A denied Complainant’s allegations that she made sarcastic comments about his age. S1A
stated that she did say to Complainant: “[Y]ou may have done this thirty years ago, but you're
not going to do it anymore.” However, she denied that she made this or any statement to
Complainant in a sarcastic manner. S1A asserted that she was simply impressing upon
Complainant that what used to be okay, was not necessarily acceptable anymore based on,
among other things, changing Agency priorities and budgetary constraints.

We note that the record is devoid of evidence that similarly situated employees outside of
Complainant’s protected classifications were treated in a more favorable manner. We find
insufficient evidence in the record to establish that the Agency’s articulated legitimate, non-
discriminatory reasons for the employment actions at issue herein were pretext or otherwise
motivated by discriminatory/retaliatory motives.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
did not establish that he was discriminated against as alleged.

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
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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.
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.
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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

March 8, 2018
Date