01A21513
01-21-2003
Ann Nolan, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Ann Nolan v. Social Security Administration
01A21513
January 21, 2003
.
Ann Nolan,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A21513
Agency No. 01-0088-SSA
DECISION
INTRODUCTION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged in her complaint that she
had been subjected to unlawful discrimination on the basis of her age
(date of birth April 10, 1930) when (1) on October 18, 2000, she was not
considered for the Lead Case Assistant position advertised under vacancy
announcement number 64-00, and (2) on December 18, 2000, she was not
selected for the Lead Case Assistant position advertised under vacancy
announcement number 99-00. For the following reasons, the agency's FAD,
which found no discrimination, is AFFIRMED.
BACKGROUND
The record reveals the following facts pertinent to the instant appeal.
At all times relevant to the agency actions at issue, complainant was
employed as a Legal Assistant at the agency's Office of Hearings and
Appeals in New Haven, Connecticut. On July 3, 2000, the agency opened
for application a vacant Lead Case Assistant, GS-9, position, with
a closing date of July 24, 2000. Complainant prepared and submitted
application materials for the vacancy, and a total of six individuals
(including complainant) applied for the position. The agency convened a
rating panel, charged with the responsibility of ranking the applicants
according to the rating and assessment criteria attached to the
vacancy announcement, and then, based upon these rankings, developing a
well-qualified list of candidates to forward to the selecting official.
Complainant received a ranking score below the minimum she needed to
be included on the well-qualified list, and her application was not
forwarded to the selecting official for consideration. Complainant was
neither considered nor selected for the position.
On October 16, 2000, the agency again opened for applications a vacant
Lead Case Assistant, GS-9, position, with a closing date of November 3,
2000. Complainant again prepared and submitted application materials for
the vacancy, and three individuals (including complainant) applied for
the position. The agency again convened a rating panel, as described
above, and complainant received a rating sufficient to warrant her
inclusion on the well-qualified list, as did the other two candidates.
The recommending official and the selecting official then jointly
interviewed all three candidates, with the recommending official
subsequently indicating to the selecting official that he felt that
the selectee was the best candidate for the position. Complainant was
neither recommended or selected for the position.
Believing that she had been subjected to discrimination on the basis of
her age in each of these selection decisions, complainant sought EEO
counseling at the agency, and subsequently filed a formal complaint,
alleging unlawful discrimination as described above. At the conclusion
of the agency's investigation of her claims, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a FAD. Complainant requested that the agency
issue a FAD.
In its FAD, the agency found that complainant failed to prove her
claims of age discrimination. As for claim (1), the agency found that
complainant established a prima facie case of age discrimination, as
she was over forty years of age and was treated differently than younger
individuals who had been considered for the position at issue. The agency
also found that it had articulated a legitimate, nondiscriminatory
reason for its action�that complainant had not been considered for
the position because she did not make the cut-off score for referral
to the selecting official. The agency further found that complainant
failed to establish that the agency's articulated reason was pretext for
unlawful discrimination. The agency noted that complainant had argued
that according to agency hiring policy, a rating panel should not have
been convened, as there were fewer than ten applicants for the position,
and that the rating panel had been used as a means to insure that certain
applicants did not make the well-qualified list. The agency further
noted, however, that the National Agreement governing the workplace
provided that a rating panel would be established for all competitive
actions, and that the vacancy at issue was a competitive action.
The agency also noted that complainant scored the lowest, compared
to the other candidates, on the rating category of Knowledge, Skills,
and Abilities (KSA), and there was no evidence that her KSA score was
discriminatory based upon her age.
As for claim (2), the agency found that complainant failed to establish a
prima facie case of age discrimination, as the selectee for the position
was sixty-eight years of age at the time of the selection, only two
years younger than complainant. In addition, the agency further found
that it had articulated a legitimate, nondiscriminatory reason for its
selection decision, as the selectee was identified as the best candidate
for the position.<1> The agency also found that complainant failed
to show that its articulated reason was pretextual, as she had failed
to prove that her qualifications were observably superior to those of
the selectee, and had failed to produce any persuasive evidence which
demonstrated that the agency was motivated in its selection decision
by an unlawful discriminatory animus based upon age. The agency also
noted that complainant had failed to show that �but for� her age, she
would have been selected for either of the positions in question.
Complainant subsequently filed the instant appeal with the Commission.
On appeal, she renews her argument that the agency, while correct that
the National Agreement requires the involvement of a rating panel for all
competitive actions, failed to follow its own Personnel Policy Manual,
which indicates that in any competitive actions for a single vacancy,
the top eight candidates must be placed on the well-qualified list.
She also identifies that the same personnel manual provides that if
there are no more eligible and qualified candidates for a vacancy
subject to competitive action than could constitute the number of
individuals on the well-qualified list, a ranking panel must not be
convened and the candidates must be referred to the selecting official
without being ranked. She contends that the only reason a ranking
panel was convened, regarding the nonselection at issue in claim (1),
was to �insure that management would not be placed in a position to
select her.� Complainant also argues that her low KSA score in the
first nonselection is at odds with the KSA score she received in the
second nonselection, where she received the highest possible KSA rating.
She also challenges the agency's finding that she failed to establish
a prima facie case as to claim (2), and that she is not significantly
more qualified than the selectee. The agency made no comment on appeal.
ANALYSIS AND FINDINGS
As an initial matter, we note that, as this is an appeal from a FAD issued
without a hearing before an EEOC Administrative Judge, see 29 C.F.R. �
1614.110(b), we apply a de novo standard of review, and our decision is
based upon a preponderance of the evidence. 29 C.F.R. � 1614.405(a).
In her complaint, complainant presents two claims of unlawful age-based
disparate treatment. In discrimination claims such as these, and where,
as here, there is an absence of direct evidence of such discrimination,
the allocation of burdens and order of presentation of proof is a
three-step process. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000) (applying the three-part analytical framework
described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), to an ADEA disparate treatment claim). First, complainant
must 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. Kimble v. Department of the Navy,
EEOC Appeal No. 01983020 (Aug. 22, 2001). Complainant may meet this
burden by showing that she was a member of a class protected by the
ADEA, that she was subjected to an adverse employment action, and that
she was treated less favorably than other similarly situated employees
substantially younger than herself. Reeves, 530 U.S. at 142; see also
O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996)
(holding that comparison employee in ADEA claim need not be outside
class of persons protected by ADEA��the fact that a replacement is
substantially younger than the [complainant] is a far more reliable
indicator of age discrimination than is the fact that [complainant]
was replaced by someone outside the protected class�); EEOC Enforcement
Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002, � 7(II)(4)-(5) (Sept. 18, 1996).
Once the complaint has established a prima facie case of discriminatory
disparate treatment, the agency must articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful
in meeting its burden, complainant must prove, by a preponderance
of the evidence, that the legitimate reason proffered by the agency
was a pretext for discrimination. Id. at 256. However, the ultimate
burden of persuading the trier of fact that the agency intentionally
discriminated against complainant remains at all times with complainant.
Reeves, 530 U.S. at 143. Furthermore, it is well established that when
a complainant alleges disparate treatment in violation of the ADEA,
�liability depends on whether the protected trait (under the ADEA,
age) actually motivated the employer's decision.� Id. at 141 (quoting
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). �That is,
the plaintiff's age must have actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the outcome.�
Id. (citation and internal punctuation omitted) (alteration in original).
Applying this analysis to the instant appeal, we agree with the agency
that the evidence does not support complainant's age discrimination
claims. As for claim (1), even assuming that complainant is correct that
the agency failed to follow proper procedure when it decided to convene a
rating panel rather than simply forward the names of all the applicants
to the selecting official, complainant has not presented any evidence
which supports her assertion that the agency's failure to conform to
its personnel procedures was the result of an unlawful discriminatory
animus against her based upon her age. Nor has complainant presented
any evidence which indicates that her age actually played a role in the
agency's decisionmaking process and had a determinative influence on
the outcome of that process.<2>
We also agree with the agency that, as for claim (2), complainant failed
to establish a prima facie case of age discrimination. While complainant
contends, correctly, on appeal that the mere fact that the individual
selected for the position at issue was of an age close to hers does
not itself indicate that age discrimination was not the reason behind
her second nonselection, we cannot conclude that she has nevertheless
presented facts regarding her second nonselection which, if unexplained,
reasonably give rise to an inference of age discrimination. Furthermore,
even assuming for the sake of this appeal that she had established a
prima facie case of age discrimination, we find that the agency did
articulate a legitimate, nondiscriminatory reason for its selection
decision, which complainant failed to prove was pretextual. We note that,
as for complainant's contention that her qualifications are superior to
those of the selectee, while in nonselection cases pretext may be found
where the complainant's qualifications are demonstrably superior to the
selectee's, Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981), an
employer has the discretion to choose among equally qualified candidates.
Hickman v. Department of Justice, EEOC Appeal No. 01A11797 (Dec. 20,
2001). The record before us on appeal, however, does not support a
finding that complainant's qualifications were so superior to those
of the selectee to establish that the agency's articulated reason for
its selection decision was pretextual. Nor does the record contain any
evidence which indicates that complainant's age actually played a role in
the agency's decisionmaking process and had a determinative influence on
the outcome of that process. Accordingly, we conclude that complainant
failed to satisfy her ultimate burden of proving by a preponderance of the
evidence that she was subjected to unlawful age discrimination as claimed.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, it is the decision of the Commission to
AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 21, 2003
Date
1 We note that the agency identified, in the �Factual Background�
portion of the FAD, evidence in support of this statement regarding the
agency's burden. This evidence included testimony from the selecting
official that he made his selection decision based upon the application
package and interview of each candidate, and that the selectee had �an
exemplary work record,� �regularly handled the more difficult cases in the
office in a volume and quality above the other candidates,� �consistently
processed her routine work product in a volume and quality above the
other candidates,� and �has a work history indicative of a capacity to
perform complex and routine work at a volume and quality superior to
the other candidates,� as well as having a work history of supervision
of other employees and team leader activities.
2 We note that complainant correctly points out that her KSA score was
much higher in the second selection process than the first, despite the
fact that the KSA criteria were identical. We also note, however, that
each vacancy announcement provided, in capital letters, bold print, and
underlined, that �applicants will be given credit only for the information
they provide in response to this announcement.� The record also shows
that the application materials complainant submitted in response to the
second vacancy announcement were significantly more informative than the
materials she submitted in response to the first vacancy announcement.
Accordingly, we are not persuaded that the record supports complainant's
assertion that the integrity of her earlier KSA rating is called into
question by her subsequent higher KSA rating.