Sharonda M.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 24, 2017

0120170106 (E.E.O.C. Jan. 24, 2017)

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

Sharonda M.,1
Complainant,

v.

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

Appeal No. 0120170106

Hearing No. 510-2014-00114X

Agency No. ATL-13-0565

DECISION

On September 22, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 17, 2016, final order 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. and 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 finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-8 Service
Representative at the Agency’s District Office facility in Pensacola, Florida. Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American) and age when, on March 18, 2013, she was not promoted to a Social
Insurance Specialist/Claims Representative position in the Pensacola office. The record
indicates that at the conclusion of the investigation, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ, after a
hearing, issued a decision finding no discrimination because Complainant had not established

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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that the Agency’s articulated reasons for its actions were pretextual. The Agency issued a final
order adopting the AJ’s decision.

On appeal, Complainant contends that the Agency erred on the issue of pretext because the AJ
failed to draw an adverse inference concerning the destruction of notes taken by the selecting
official and recommending official or to properly consider testimonial evidence of favoritism
shown towards the selectee by the selecting official. Finally, Complainant asserts that her
qualifications were superior to the selectee because of her work history and job knowledge and
had in fact trained the selectee when the selectee initially became a Service Representative.

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. 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, at § VI.B. (Aug. 5, 2015).

In this case, Complainant established a prima facie case of discrimination; however, the AJ
determined that the Agency articulated legitimate, nondiscriminatory reasons for promoting
selectee. The AJ’s decision is supported by substantial evidence in the record.

As the AJ observed, where there are two equally desirable candidates competing for the same
position the selecting official may exercise her prerogative in choosing between the candidates,
and absent discrimination, a trier of fact should not substitute his judgment. Here, the
recommending official, the immediate supervisor of Complainant and the selectee, testified that
she “generally recommended” Complainant and “highly recommended” the selectee for the
position at issue. The recommending official explained that she gave a higher ranking to the
selectee because the selectee was a “stellar employee” who went “over and above” in her
work, and on her own initiative, performed the work of absent employees to prevent backlogs.
The selecting official agreed with the recommending official’s assessment and the appointing
official decided that the selection recommendation was based on a fair consideration of all the
applicants. Even if the selecting official’s alleged favoritism towards the selectee played a role
in the decisional process, such action would not violate Title VII or the ADEA since the
Complainant did not produce any evidence indicating that the preferential treatment was based
on race or age.

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Further, while Complainant is correct that the recommending official did not initially testify
about every one of Complainant’s special projects and extra tasks she performed, that oversight
was corrected on cross-examination and the additional information did not establish that
Complainant was obviously more qualified than the selectee or that the reasons proffered for
the selection were pretextual. Indeed, even Complainant’s own witness, a former supervisor,
testified that he would not have chosen Complainant for the promotion.

Finally, the AJ correctly drew no adverse inference from the selecting official or
recommending official’s destruction of their notes relating to the selection criteria or process.
The recommending official testified that destroying such documents is a practice routinely
followed by the Pensacola office for years, and Complainant has offered no evidence that
contradicted this testimony. Moreover, Complainant points to no evidence that would suggest
that the destroyed documents contained information that was unfavorable to the Agency or
supports the conclusion that Complainant was a victim of discrimination due to her race or age.
Substantial evidence supports the AJ’s finding that the selection criteria and process were not a
pretext for race or age discrimination and the conclusion that Complainant’s nonselection was
not motivated by unlawful discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions 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 (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 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
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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
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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 24, 2017
Date