Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120123335 (E.E.O.C. Mar. 20, 2014)

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

,
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120123335

Agency No. KC-10-0554SSA

Hearing No. 560-2011-00014X

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 3, 2012 final Agency decision (FAD) concerning her 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND
On January 29, 2010, the Agency posted a vacancy announcement for Benefits Authorizer
positions at the Agency’s Mid-Atlantic Program Service Center in Kansas City, Missouri.
Complainant had previously applied for a position with the Agency under the Schedule A
hiring authority and a Human Resources Specialist (HRS) reached out to her to inform her of
the vacancy. Complainant applied, was administered the Administrative Careers with America
(ACWA) test, and received a score of 99. On March 23, 2010, a three-person panel
interviewed Complainant and other applicants. The panel reviewed each applicant’s responses
to seven behavioral questions and reached a consensus on the score for each candidate. In
addition, the panel rated each candidate as “not recommended,” “recommended,”
“recommended plus,” or “highly recommended.” Complainant received a score of 24 out of
35 and a “recommended” rating. Complainant was referred to the selecting official (SO) for
consideration under both the competitive and Schedule A certificates. SO considered the
candidates’ ACWA test scores, veterans’ preference status, interview scores, and any
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recommendations the candidates may have received. On April 29, 2010, Complainant was
notified that she was not selected.

On June 7, 2010, Complainant filed a formal complaint alleging that the Agency discriminated
against her on the bases of disability and in reprisal for prior protected EEO activity when on
April 29, 2010, she was notified that she was not hired for a Benefits Authorizer position
advertised under Job Announcement Number (JAN) SK315613.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
on February 27, 2012. On March 13, 2012, Complainant withdrew her hearing request and
requested a FAD. On March 15, 2012, the AJ remanded the complaint to the Agency and the
Agency issued a FAD on August 3, 2012.

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for not selecting Complainant. Specifically, SO confirmed that
Complainant was referred for consideration under both the competitive and Schedule A
certificates. SO affirmed that he convened an interview panel. The panel members scored the
candidates’ performances during the interview and made specific recommendations for
selection. The lead interview panelist (IP1) recalled that Complainant conveyed a lot of
information during her interview, but provided some irrelevant information. Another panelist
(IP2) stated that Complainant did a lot of talking and did not always stay focused on the
question. Otherwise, IP2 reported that Complainant’s responses were acceptable and that she
was rated as “recommended.”

The panel forwarded their recommended candidates for consideration, and SO made selections
based on the panel’s recommendations and the candidates’ applications. SO initially selected
three disabled veterans preference candidates and filled the remaining vacancies using the
“Rule of Three.”2

1 Complainant withdrew age and sex as bases of discrimination on November 1, 2011.
SO stated that he went through three Rule of Three groups before
Complainant’s name came up for consideration. SO further explained that he considered
Complainant in three Rule of Three groups. In the first group, he selected an applicant with an
ACWA score of 99, an interview score of 33, and a “highly recommended” rating by the
interview panel. In the second group, he selected an applicant with an ACWA score of 99, an
interview score of 31, and a “highly recommended” rating by the interview panel. In the third

2 The “Rule of Three” refers to a process where each candidate is ranked and the selecting
official selects one of the top three ranked candidates. The selecting official then can move
down the list and consider the two candidates who were not selected along with the next
candidate on the list. After being considered for selection three times, the selecting official
may eliminate a candidate from the list of eligible applicants.
0120123335

3
group, he selected an applicant with an ACWA score of 98.5, an interview score of 35, and a
“highly recommended” rating from the interview panel. At that point, SO dropped
Complainant from consideration after she was not selected from the third group. SO affirmed
that he selected 36 candidates out of 55 eligible applicants.

The Agency concluded that Complainant failed to show that management’s reasons for her
non-selection were pretextual. As a result, the Agency found that Complainant had not been
discriminated or retaliated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the evidence shows that the Agency discriminated
against her based on her disability and retaliated against her for her prior protected activity of
suing her former employer. Complainant argues that she has professional work experience, a
professional degree, and is a community leader, but the interview panel’s scores do not reflect
her actual communication abilities. Complainant points out that her AWCA scores were
higher than many of the selectees. Finally, Complainant alleges that a Human Resources
Specialist was demeaning and pompous to her when she spoke with him regarding the status of
the selection process which shows the Agency was motivated by discriminatory and retaliatory
animus. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS
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). She must generally establish a prima facie case by demonstrating that
she 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 where 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). 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 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
In the instant case, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, SO testified that in making his
selection decisions, he reviewed the candidates’ AWCA test scores, interview scores, and
interview panel’s recommendations. Hr’ Tr., at 138-40. SO further testified that, pursuant to
Agency policy, he followed the Rule of Three and considered Complainant for the position
three times; however, she was eliminated from further consideration after she was not selected
as the best candidate after three rounds. Id. at 143-44. SO testified that the deciding factors in
not selecting Complainant were that her interview score was low and the interview panel
0120123335

4
determined that there were other candidates who interviewed better and still scored well on the
AWCA test. Id

. at 154-55.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
One way Complainant can establish pretext is by showing that her qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar

, 647 F.2d 1037, 1048 (10th Cir. 1981).
This is simply one method and is not the only way Complainant may establish pretext as to her
non-selection claim.
The Commission finds that Complainant failed to show that her qualifications for the position
were plainly superior to those of the selectees. The record establishes that SO chose the
selectees because he believed that the selectees were better qualified and would be better
equipped to meet the Agency's needs. When choosing among highly qualified candidates for a
position, an employer has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent evidence of unlawful
motivation. See Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't
of the Treasury

, EEOC Request No. 05940906 (Jan. 16, 1997).
The Commission finds that the record is devoid of any evidence that the Agency's selection or
the selection process was tainted by discriminatory or retaliatory animus. At all times, the
ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence
that the Agency's reasons were not the real reasons and that the Agency acted on the basis of
discriminatory animus. Complainant has failed to carry this burden. As Complainant
requested that the Agency issue a FAD, the Commission does not have the benefit of an AJ's
credibility determinations after the hearing. Therefore, the Commission can only evaluate the
facts based on the weight of the evidence presented. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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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 (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.

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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

Date
March 20, 2014