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

Equal Employment Opportunity Commission

Jun 5, 2013

0120112465 (E.E.O.C. Jun. 5, 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. 0120112465

Hearing No. 560-2009-00194X

Agency No. KC-08-0671-SSA

DECISION

Complainant filed an appeal from an Agency’s final order dated February 23, 2011, finding no
discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, Complainant alleged discrimination based on race (African American) and in
reprisal for prior EEO activity when on June 9, 2008, she was not selected for the position of
Information Technology (IT) Specialist, GS-11. The record indicates that at the conclusion of
the investigation, Complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ, after a hearing, issued a decision dated February 14, 2011, finding no
discrimination, which was implemented by the Agency in its final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The AJ noted that during the relevant time period at
issue, Complainant was a GS-9, Hearing Office Systems Administrator (HOSA). As a HOSA,
Complainant was responsible for maintaining and troubleshooting the Agency’s computer
systems for the employees of the St. Louis hearing office. In April, 2008, Complainant
applied for one of two GS-11 IT Specialist positions. Three applicants, including
Complainant, were qualified for the positions.

The Recommending Officer (RO) stated that for the positions at issue, she was looking for an
individual who would work independently and who had leadership qualities as the IT Specialist
must provide guidance to employees. The RO indicated that she reviewed the applications of
the qualified applicants and conducted telephonic interviews with each applicant. Among three
qualified applicants, stated the RO, she recommended Selectees A and B, and not
Complainant, for the positions. The RO stated that Selectee A’s application indicated the list
of many prestigious awards she received for her outstanding computer skills and achievements
in information technology and relevant training courses. The RO also indicated that Selectee
B’s application indicated that he worked as a regional representative on a national team and he
had very good interview. The RO stated that Complainant’s application, however, did not
indicate many awards relating to computer skills or any superior leadership. The RO indicated
that Complainant’s interview was not impressive. The RO further added that as she was the
Regional Systems Administrator, she was familiar with Selectees A and B and Complainant.
As a HOSA, Complainant called the RO on a daily basis for assistance whereas Selectees A
and B worked more efficiently and independently and rarely called her for assistance. Solely
based on the RO’s recommendation, the selecting official, i.e., the Regional Management
Officer, selected Selectees A and B for the position at issue.

The AJ determined that despite Complainant’s contentions, there was no evidence that her
years of HOSA experience rendered her more qualified for the position than Selectee B.
Furthermore, we agree with the AJ’s finding that all applicants, including Complainant, were
performing the same or similar HOSA duties. We also agree with the AJ’s finding that
Complainant failed to establish that her qualifications, as presented in her application and her
interview, were so plainly superior to Selectees A and B that a discriminatory motive could be
inferred. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2,
1995). The AJ thus determined and we agree that Complainant failed to show that the
Agency’s proffered reasons were pretextual. Upon review, we find that the AJ’s factual
findings of no discriminatory intent are supported by substantial evidence in the record.

0120112465

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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
0120112465

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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

June 5, 2013
Date