Melodee M.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181002 (E.E.O.C. Sep. 11, 2019)

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

Melodee M.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120181002

Hearing No. 520-2015-00271X

Agency No. NY-13-0015-SSA

DECISION

On January 17, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 18, 2017 final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative
Specialist, Post-Entitlement Technical Expert, GS-0105-10, at the Agency’s Northeastern Program
Servicing Center in New York, New York. Complainant previously filed an EEO complaint
alleging the Agency discriminated against her on the bases of sex and religion when it did not
promote her to a Claims Authorizer position in 2010.

Complainant again applied for a Claims Authorizer position in June 2012, announced under Job
Announcement No. SN-679722-12-ROII 175. The job announcement stated that the Agency had
12 vacancies to fill. Complainant was found qualified for the position.

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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The selection panel for the position was composed of four Operations Managers (OM). The
selection panel reviewed applications and contacted current and past supervisors for
recommendations. The OMs created a list of best-qualified candidates, including Complainant.
The selection panel did not conduct interviews for the position. After soliciting feedback from the
candidates’ immediate supervisors, the OMs rated the candidates as “Highly Recommended,”
“Recommended,” or “Not Recommended.” Complainant was rated “Recommended.” In support
of Complainant’s classification, the OMs noted that Complainant had difficulty with the timeliness
of her work in the past based on her previous performance evaluations. Complainant’s
performance evaluations were consistent between 2008 and 2012, and Complainant received
ratings of 3 (out of a possible 5) in the categories of “Interpersonal Communication” and “Active
Business Results,” which included the timeliness of her work.

The selection panel made 12 selections. Complainant was not selected. After making its
selections, one of the 12 selectees declined the Agency’s offer because he accepted another offer.
The OMs then chose another candidate (CW1) who was over the age of 40. CW1 had previously
inquired about her non-selection, arguing that it was due to her age. While the panel had
reservations about CW1, she was close in rank to the top 12 candidates and was subsequently
selected.

The record reflects that one of the other OMs was Complainant’s second-line supervisor (S2). The
record further reflects that the OMs rated CW1 “Highly Recommended.” On August 27, 2012,
the Agency informed Complainant that she was not among the 12 employees selected for
promotion.

On January 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of age (40) and in reprisal for prior protected EEO activity when on August
27, 2012, she was not selected for a position for the Social Insurance Specialist (Claims
Authorizer) position advertised under Job Announcement Number SN-679722-12-ROII 175.

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). Complainant timely requested a hearing and
the AJ held a hearing on March 27, 2017, and issued a decision on July 6, 2017.

In her decision, the AJ concluded that Complainant failed to establish a prima facie case of reprisal
because she failed to demonstrate a nexus to her prior protected EEO activity as the instant
allegations occurred approximately 21 months after she filed her prior EEO complaint and 12
months after her appeal with the Commission concluded. The AJ found that Complainant
established a prima facie case of age discrimination and that the Agency sufficiently articulated
legitimate, nondiscriminatory reasons for Complainant’s non-selection. Specifically, Complainant
had prior issues with timeliness and the selectees had better overall performance records. The AJ
further noted that all selectees were rated “Highly Recommended” while Complainant was only
rated “Recommended.”

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The AJ found that Complainant did not show that the Agency’s reasons for not selecting her were
pretext because she did not show that she had better qualifications than the selectees. Additionally,
while Complainant argued that the Agency’s selection of CW1 was evidence of pretext, the AJ
noted that the Agency provided evidence that CW1’s selection was appropriate as she was just
“under the line” of initially being selected. As a result, the AJ found that Complainant had not
been subjected to discrimination or reprisal as alleged.

The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ’s findings of facts contained several errors. First,
Complainant contends that the record is wholly devoid of evidence, beyond the OMs’ conclusory
and self-supporting statements, documenting that she suffered from timeliness issues. Next,
Complainant contends that two of the OMs lied about their knowledge and roles in her prior EEO
complaint at the hearing and later backtracked and conceded that they were in fact responsible
management officials in the previous case. Complainant then argues her qualifications were
plainly superior to those of the selectees based on her being recognized for her superior abilities
when she received certificates from S2 and her supervisor for improving the performance of her
team. Complainant also points to a commendation she received in which a module manager said
“I do not believe that we could have picked a better candidate for the assignment.” Complainant
also claims that many of the selectees were trainees at the time she was a Benefits Authorizer.
Based on these errors, Complainant argues that the record does, in fact, show that she established
her allegations. Accordingly, Complainant requests that the Commission reverse the final order.

In response, the Agency notes that 85 applicants made it onto the best-qualified list of candidates.
The OMs then narrowed the applicant pool to 35 candidates, and Complainant made that cut. The
35 candidates were then rated based on whether they were recommended. The Agency noted that
Complainant’s first-line supervisors and S2 all “agreed that Complainant had ‘improved’ and had
‘made progress’ [regarding her timeliness], they also wanted Complainant to perform at this
improved standard for a longer period of time before being promoted.”

In addition, the Agency specifically responds to Complainant’s assertion that it failed to provide
any evidence she failed to timely complete her work. “[H]er managers did not deny that she had
shown improvement in her timeliness; instead, they explained that they wanted to see her maintain
that improvement over a longer period of time before considering her for a Claims Authorizer
position.”

Moreover, the Agency argues that Complainant has not demonstrated she was observably superior
to the selectees. Rather than supporting her position that she trained employees who were
promoted, the Agency argues that “the selectees, having mastered the job in a shorter period of
time, were more qualified.”
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The Agency also dismisses Complainant’s citation to CW1 as evidence of age discrimination and
points out that CW1 was highly recommended; Complainant was not.

Finally, the Agency disputed that management officials lied at the hearing. Rather, Complainant
had asked them whether they remembered completing affidavits in this matter. When they did not
recall doing so, Complainant showed them the affidavits, which refreshed their memories. The
Agency noted that the hearing took place approximately four years after management officials
completed their affidavits. Beyond this question, Complainant did not articulate any evidence
tending to establish reprisal. As a result, the Agency requests that the Commission affirm 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. Nat’l Labor Relations Bd., 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.

After a thorough review of the record and all arguments on appeal, the Commission concludes that
the AJ’s findings of fact are supported by substantial evidence in the record. As such, the AJ’s
findings of fact are upheld herein.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
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Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In this case, as described above, substantial record evidence supports that the Agency has
articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position.
The Agency explains that Complainant had performance issues in completing work product in a
timely manner. The Agency noted that Complainant had improved in that respect, but that
management believed that she needed to sustain that improvement before being promoted.
Moreover, Complainant was not among those who were “Highly Recommended,” but rather she
was “Recommended” based on supervisory feedback. The Agency promoted only those who were
“Highly Recommended,” including CW1.

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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Additionally, where, as here, the alleged discriminatory action is non-selection, pretext may be
found where the complainant's qualifications are demonstrably superior to those of the selectee.
Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among
qualified candidates based on its discretion, provided that the decision is not based upon unlawful
criteria. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No.
05940906 (Jan. 16, 1997). It is not the function of this Commission to substitute its judgment for
that of management officials who are familiar with the needs of their facility, and who are in a
better position to make decisions, unless other facts suggest that proscribed considerations of bias
entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No.
05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy,
EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions should not be second-guessed
by the reviewing authority absent evidence of unlawful motivation). Further, the Commission
notes that number of years of experience, alone, is insufficient to establish that a candidate's
qualifications are observably superior. Kopkas v. U.S. Postal Serv., EEOC Appeal No.
0120112758 (Oct. 13, 2011).

The Commission finds that the Agency’s actions with respect to CW1 do not prove that its actions
toward Complainant were because of her age; CW1 was “Highly Recommended,” while
Complainant was not. Further, Complainant has articulated no set of facts tending to establish
sufficient nexus between her EEO activity and the Agency’s hiring decisions. Finally,
Complainant does not demonstrate that her qualifications were observably superior to others.
While Complainant sets forth a broad collection of accomplishments and experiences, she has not
shown that her qualifications were observably superior or that the Agency’s explanations were
pretextual.

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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 or retaliatory animus. Complainant has not carried her burden here. After
reviewing the record and considering the arguments on appeal, we find that the AJ made reasonable
credibility determinations, which are not contradicted by objective evidence, and the AJ's factual
findings are supported by substantial evidence. Therefore, we find that substantial record evidence
supports the AJ's finding that Complainant failed to establish that the Agency's stated reasons for
her nonselection were pretext intended to hide discriminatory or retaliatory motivation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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

September 11, 2019
Date