[Redacted], Paris F., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2022004066 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Paris F.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2022004066 Agency No. SF-22-0167-SSA DECISION 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 July 8, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant District Manager (GS-13) at the Agency’s Southwest Area, Apache Junction District Office in Apache Junction, Arizona. On February 4, 2022, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on sex (male) when on December 27, 2021, he learned that he was not selected for the position of Social Insurance Administrator/District Manager (GS-14) under vacancy announcement number SC-1130-2187-22ALH. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. 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. 2022004066 2 The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), and it concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed, and Complainant provided a brief in support of his appeal. The Agency opposed Complainant’s appeal.2 ANALYSIS AND FINDINGS Standard of Review 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 Chap. 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”). Disparate Treatment 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 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 in this case, however, since 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); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2 On September 22, 2022, Complainant provided another brief in response to the Agency’s opposition brief. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant’s second brief was submitted past his 30-day deadline of August 21, 2022. As such, we will not consider the arguments in this untimely brief. 2022004066 3 We find that Complainant established a prima facie case of sex discrimination because the Selectee (female) was outside of his protected class. The Agency then provided legitimate, nondiscriminatory reasons for its action. The Selecting Official explained that she and the Deputy Area Director interviewed five applicants, and that Complainant did not perform well during his interview. Specifically, Complainant’s answers reflected limited experience and limited knowledge, skills, and abilities to perform at the next level, and that he needed more time and development. Complainant scored fourth, out of the five candidates. ROI at 94. The Selecting Official responded that the Selectee was the best candidate, and her responses reflected her skills and abilities to oversee a large district, and compared to Complainant, the Selectee had broader experience; had more oversight in an office; and she had engaged in different things. The Selecting Official added that she promoted Complainant from a GS-12 to GS-13 level, and that his knowledge, skills, and abilities were appropriate for a GS-13 position. ROI at 94-6. The Selecting Official also provided her recommendation memorandum, in which she noted that the Selectee was currently a “level 2” District Manager; had great interpersonal skills and was calm and tactful; effectively oversees her workload; and has technical knowledge. The Selecting Official also stated that the Selectee did an “exceptional job during her interview” to highlight her thought processes, interpersonal communication skills, and experience while Complainant’s interview responses reflected limited experience, knowledge, and skills. The Selecting Official further noted that the Selectee’s supervisor gave her a high recommendation and they were unable to obtain a recommendation for Complainant because his supervisor left the Agency. The Selecting Official concluded that the Selectee was the best candidate and did an outstanding job during the interview phase. ROI at 100-1. The Deputy Area Director corroborated that the Selectee scored much higher than Complainant for her interview. The Deputy Area Director added that Complainant did not have a lot of operational/field office experience and his supervisory experience in an Area Director’s Office was limited to a staff of about three or four employees. ROI at 88. On appeal, Complainant asserts that the Agency did not provide the Selectee’s interview notes and has not met its burden to provide an explanation of their scores. However, we find that the Agency provided its legitimate, nondiscriminatory reasons through the sworn affidavits of the responsible management officials and the Selecting Official’s recommendation memo, and it did not simply provide unexplained scores for the selection. While the Agency’s burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment, as Complainant is entitled to some rationale for the adverse action that provides him with an opportunity to attempt to satisfy his ultimate burden of proving that the Agency’s explanation was a pretext for discriminatory animus. See Beasley v. U.S. Postal Serv., EEOC Appeal No. 07A40096 (March 18, 2005). Based on the specific responses, such as the Selectee’s interpersonal and technical skills, and her ability to oversee a large district, and Complainant’s limited operational/field office and supervisory experience, we find that the Agency met its burden to provide legitimate, nondiscriminatory reasons for its action. 2022004066 4 We also find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant argues that management officials made factually incorrect statements. For example, that the Selectee had as much Assistant District Manager experience as Complainant and that Complainant lacked field experience. However, Complainant did not to cite to any supporting evidence and only offers bare assertions that the proffered legitimate, nondiscriminatory reasons were “extremely weak” and “not worthy of credence.” Complainant also disputes the Deputy Area Director’s assertion that she had “no decision” in the non-selection, but he only opines that it is “very difficult to believe,” without evidence. Complainant Appeal Brief at 2. We find that Complainant’s unsubstantiated opinions do not establish pretext for discrimination. Complainant also contends that bias in the selection was demonstrated by statistical evidence showing a disproportionate selection of female candidates for five positions in various locations. However, the Commission and the courts have held that, while statistics are relevant, statistics alone, especially if they are generalized and overbroad, will not be sufficient to prove pretext in individual complaints of disparate treatment. See Stevens v. Equal Emp’t Opportunity Comm., EEOC Appeal No. 01970848 (Aug. 14, 1997); Talley v. U.S. Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983), cert denied 466 U.S. 952 (1984); Hudson v. IBM Corp., 620 F.2d 351, 355 (2d Cir.), cert denied 449 U.S. 1066 (1980). Complainant makes overbroad contentions of bias due to these statistics, which do not undermine the Agency’s rationale for choosing the Selectee based on her superior interview performance for the vacancy at issue. In addition, in a non-selection case, pretext may be also found where the complainant’s qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant asserts that the Selectee never managed management officials or subordinate offices; and that he was “significantly more qualified.” Complainant Appeal Brief at 3. However, Complainant offers no details or evidence to demonstrate that his qualifications were plainly superior to those of the Selectee, such that the disparities in their qualifications were of such weight and significance that no reasonable person could have chosen the Selectee over Complainant. See Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). The Commission has previously found that an agency has the discretion to choose among candidates whose qualifications are relatively equal, as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC Appeal No. 0120110338 (March 23, 2011), citing Texas Dept. of Community Affairs, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). 2022004066 5 Further, we note that, in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Texas Dep’t of Community Affairs, 450 U.S. at 259. In this case, Complainant provided no evidence to show that his non-selection was due to an unlawful factor. Accordingly, we find that Complainant did not establish that he was subjected to sex discrimination when he was not selected for the position of Social Insurance Administrator/District Manager. 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 decision finding that Complainant did not prove discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022004066 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 5, 2023 Date