Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120112563 (E.E.O.C. Feb. 7, 2013)

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

,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120112563

Agency No. BOS-10-0714-SSA

DECISION

On April 14, 2011, Complainant filed an appeal from the Agency’s March 22, 2011, final
decision concerning his 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. 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 Claims
Representative, GS-11, at the Agency’s Boston District Office in Boston, Massachusetts. On
February 25, 2010, the Agency posted Vacancy Announcement SM-324254-10-65 for the
position of Information Technology (IT) Specialist, GS-2210-11/12, in Boston, Massachusetts.
Twelve candidates applied for the IT Specialist position and seven candidates, including
Complainant, were selected for interviews. The interview panel was composed of three
members: Panel Member 1, Panel Member 2, and Panel Member 3 who was also the
Selecting Official. The interview panel ranked the top three candidates for the position and
Complainant was ranked third. Complainant was notified on May 14, 2010, via electronic
mail that he was not selected.

Complainant filed an EEO complaint dated August 4, 2010, alleging that the Agency
discriminated against him on the bases of national origin (foreign accent) and age (44) when:
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Complainant was not selected for the position of IT Specialist, GS-2210-11/12, that was posted
under Job Announcement SM-324254-10-65.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, 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 him to discrimination as alleged.

The Agency’s final decision noted that Panel Member 1 and Panel Member 3 retired from the
Agency and were not interviewed by the investigator. However, the Agency noted that Panel
Member 1 provided a statement during informal counseling in which he stated the selection
was based on experience, the interview, and the recommendation of the candidate’s manager.

Assuming Complainant established a prima facie case of discrimination, the Agency noted it
presented legitimate, non-discriminatory reasons for not selecting Complainant. Specifically,
the Agency stated it was looking for a candidate with experience in hardware and infrastructure
and not someone with software experience. The Agency noted that Selectee 1 was chosen for
the IT position since she had previously worked as an Internet Service Provider (ISP), had
assisted network people, knew basic HTML coding, and conducted heavy customer support
assisting people with their internet service problems.

Additionally, the Agency noted that the candidates for the subject IT Specialist position were
also considered for a Management Analyst position. The Agency noted that Selectee 2 was
chosen for the Management Analyst position and that she was from Eastern Europe and had an
accent. The Agency noted that in his formal complaint, Complainant stated that he was not
including a separate cause of action based on his non-selection for the Management Analyst
position. However, the Agency noted that the fact that the Agency selected an applicant with a
foreign accent was highly probative to Complainant’s claim of non-selection for the IT
Specialist position.

The Agency noted that in an attempt to show pretext, Complainant argued the Agency’s
reasons are “unworthy of credence” because Complainant was more qualified than Selectee 1.
The Agency noted Complainant relied heavily on his educational experience and states that
Selectee 1 had no IT education, no hardware education, and no software education. The
Agency noted, however, that the position did not require any specialized educational
prerequisites. The Agency claimed Selectee 1 had the requisite work experience for the
position. Thus, the Agency found Complainant failed to show that its actions were a pretext
for discrimination.

1 In this case, we will treat Complainant’s claim that he was subjected to discrimination based
on his foreign accent (Russian) as a claim of discrimination based on his national origin.
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On appeal, Complainant notes that in February 2010, the Agency posted an announcement to
fill two IT Specialist positions under Vacancy Announcement SM-324254-10. Complainant
states he applied for and was interviewed for the IT Specialist position; however, he was not
selected. Complainant claims that he was more qualified for the position than the selectees
because he had more education and experience. Complainant states that someone gave him a
bad reference (had reservations) and that this ultimately cost him from being selected.
Complainant states this issue was not properly investigated.

In addition, Complainant states that the Agency failed to investigate why Selectee 2 was chosen
instead of him. Complainant notes that while Selectee 1 had some IT experience with a small
Internet Service Provider (ISP), Selectee 2 did not have any IT education nor did she have any
IT experience. Moreover, Complainant claims that the Agency only took testimony from
Panel Member 2 who he claims had a minimal role in choosing the selectees as opposed to
Panel Member 1 and Panel Member 3, who played much bigger roles in the selection of the
candidates.

In response to Complainant’s appeal, the Agency reiterated its position that Complainant failed
to show that his age or national origin played a role in his non-selection for the IT Specialist
position. With regard to Complainant’s contention that it failed to investigate why
management chose Selectee 2 for the Management Analyst position, the Agency stated that in
his formal complaint, Complainant stated that he was only challenging his non-selection for the
IT Specialist position and that he stated he did not want to pursue further investigation into the
Management Analyst position. Additionally, with regard to his claim that the Agency failed to
investigate whether his manager gave him a poor recommendation, the Agency notes
Complainant provides no explanation as to how such an inquiry would have been relevant to
his discrimination claim. Moreover, the Agency notes that Complainant admitted he asked his
manager whether she had provided a recommendation and he notes she stated she had provided
an excellent recommendation.

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. (November 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”).

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
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was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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 actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 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 Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

At the outset, we address Complainant’s contention that the Agency failed to investigate his
claim that he was not selected for an IT Specialist position in favor of Selectee 2. Despite the
Agency’s contention that Selectee 2’s selection was for a Management Analyst position, we
find the record shows otherwise. The record reveals that Complainant for applied for Vacancy
Announcement SM-324254-10-65 for the position of Information Technology (IT) Specialist,
GS-2210-11/12. Panel Member 2 noted that during the interview for Vacancy Announcement
SM-324254-10-65, the candidates were interviewed for two positions at the same time. On
March 18, 2010, the Merit Promotion Certificate of Eligibles (Certificate Number SM-10-
EEM-01537S0) Vacancy 324254 was issued showing ten people were not selected, including
Complainant, and that Selectee 1 and Selectee 2 were selected. The Standard Form 50 for
Selectee 1 shows that effective May 9, 2010, she was selected for the IT Specialist position
from Certificate Number SM-10-EEM-01537S0. The record also contains the Standard Form
50 for Selectee 2 showing that effective May 9, 2010, she was selected for the IT Specialist
position from Certificate Number SM-10-EEM-01537S0. Upon review, we find the record
shows that Complainant interviewed for and was considered for two IT Specialist positions for
which Selectee 1 and Selectee 2 were chosen.

Next, we address the Agency’s contention that in his formal complaint, Complainant stated that
he was only challenging his non-selection for the IT Specialist position and that he stated he did
not want to pursue further investigation into the Management Analyst position. In his June 21,
2010 informal complaint, Complainant stated that he applied for three positions between March
2010 and April 2010: SM-324254-10-65 IT Specialist, Center for Automation (COTA); SM-
340023-10-74 Management Analyst, CSI; and SM-341300-10-76 Human Resources Specialist,
COTA. Complainant stated that he was interviewed for the IT Specialist position, which he
claims had two vacancies, and the Management Analyst position.

In his August 4, 2010 formal complaint, Complainant stated “I want to file this complaint only
about the IT specialist position.” Complainant stated he was not sure whether he was more
qualified than the people whom they selected for the Management Analyst and Human
Resources positions. Thus, he stated he did not want to pursue any further investigation about
the Management Analyst and Human Resources Specialist positions. However, in his formal
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complaint, Complainant noted there were two open IT Specialist positions and he noted he was
not selected for either of these positions and that the two women selected were less qualified
than him. From a description of the women selected, it is evident that Complainant is
describing Selectee 1 and Selectee 2. As describe above, we find Selectee 1 and Selectee 2
were both selected for IT Specialist positions. Despite the Agency’s contentions to the
contrary, we find Complainant did pursue in his formal complaint his non-selection for both
positions for which Selectee 1 and Selectee 2 were selected.

Upon review, we find the record in the present case adequately developed. With regard to
Complainant’s contentions that the investigation did not include statements from Panel Member
1 and Panel Member 3, we note that both men retired prior to the investigation being
completed. The record shows that the investigator attempted to obtain statements from both
men; however, they refused to provide statements. As Panel Member 1 and Panel Member 3
were retired, we note they could not be compelled to participate in the investigation.

The Agency articulated legitimate, non-discriminatory reasons for choosing Selectee 1 and
Selectee 2 for the positions at issue: they were ranked first and second by the panel; their
experience and education; their interviews; and the recommendations they received from their
managers. In a July 7, 2010 statement, Panel Member 2 stated that Selectee 1 previously
worked for a small ISP which was appealing since one of the positions would entail providing
customer support for systems staff. Panel Member 2 also noted that Selectee 2 minored in IT
in college and was “tremendously impressive” during the interview. Panel Member 2 noted
that both Selectee 1 and Selectee 2 received glowing recommendations. In a July 12, 2010
statement, Panel Member 1 confirmed that Selectee 1 and Selectee 2 received glowing
recommendations and stated that the third candidate (Complainant) received a good
recommendation with reservations from his manager. Complainant has failed to show that his
qualifications were plainly superior to those of the Selectee. Moreover, we find Complainant
failed to show by a preponderance of evidence that the Agency’s actions were a pretext for
prohibited discrimination. We note that there is no indication that Complainant’s accent was
considered in the selection decision.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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:

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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 (November 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
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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

February 7, 2013
Date