0120152231
05-09-2017
Lashawna C.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lashawna C.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120152231
Agency No. NY140618SSA
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 12, 2015 final decision concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-8 Teleservice Representative at the Agency's New York Teleservice Center facility in Jamaica, New York.
On July 31, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (53) when, on June 5, 2014, she learned that she was not selected for the Claims Representative, GS-9 position for which she had applied.
The Agency accepted the complaint for investigation. The pertinent record revealed the following facts. The Agency announced vacancies in eleven positions at various locations under Vacancy Announcement SN-1048987-14. Complainant applied for a single position at the Freeport, New York District Office. The Agency conducted no interviews. The selecting official, who was also within the protected age group, offered the position to another candidate. The selectee was 49. Complainant was four years older.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency states that, 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 decision pursuant to 29 C.F.R. � 1614.110(b). The record contains a request from Complainant's representative requesting a hearing. The record is unclear, however, as to whether the Agency received the request.
The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency reasoned that the "selection of a candidate only four years her junior raises no inference that Complainant was rejected because of her age." This appeal followed.
CONTENTIONS ON APPEAL
Neither party submitted a brief on appeal.
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").
Section 633(a) of the Age Discrimination in Employment Act requires federal agencies to make all of their personnel actions free of unlawful age discrimination.
In this case, Complainant claims that she was discriminated against on the basis of age when management selected another candidate. Both Complainant and the person selected were in the protected age group. Complainant was age 53 and the selectee age 49. Generally, a difference of only four years would be insufficient to establish age discrimination.
Assuming for purposes of analysis that Complainant established a prima facie case of age discrimination, we find that the Agency articulated a legitimate non-discriminatory reason for its action. The Agency stated that it deemed the selectee to be better qualified based on the supervisor's feedback in support of the selectee and based on its perception of her experience as a Benefits Authorizer and the selectee's technical skills.
To ultimately prevail, Complainant would have to show that the stated reasons were a pretext for unlawful age discrimination. Although she questioned the truthfulness of the statements of the management officials as to whether the selectee was better qualified, she provided no evidence to show pretext. Instead, Complainant questioned why the selecting official would prefer a Benefit Authorizer for the Claims Representative position, rather than an incumbent Service Representative. Complainant asserts that there is nothing in the duties of a Benefit Authorizer that provides better preparation than she had as a Service Representative "who has an advantage when it comes to dealing directly with the public."
We find that the evidence does not show that the stated reasons were a pretext for age discrimination. The record supports the Agency's conclusion that Complainant failed to prove by a preponderance of the evidence that she was not selected because of her age.
CONCLUSION
Accordingly, we AFFIRM the Final Agency Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 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. The requests 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 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. 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
May 9, 2017
__________________
Date
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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