U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenny W.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005398 Hearing No. 560-2018-00029X Agency No. DAL-16-0741-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 June 20, 2019, 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist (GS-11) at the Agency’s Tulsa Field Office in Tulsa, Oklahoma. On May 9, 2014, the Agency posted a vacancy for a Paralegal Specialist (GS-9/11/12) in the Office of Disability Adjudication and Review (ODAR), under vacancy announcement number ST-1117374-306-14-DAL-MW. Report of Investigation (ROI) at 144-50. On May 26, 2014, Complainant submitted his application for the position. ROI at 190-7. 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. 20190053982 On July 11, 2014, the Selecting Official (SO) sent a memo to the Regional Management Officer to recommend the selectees, (S1) (age 58, male, no prior EEO activity) and (S2) (age 57, female, no prior EEO activity), for the Paralegal Specialist positions. ROI at 139-40. On July 16, 2014, the Hearing Office Director (HOD) sent an email to the ODAR staff to announce that S1 and S2 had been selected. ROI 142. On October 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (51), and in reprisal for prior protected EEO activity when on August 14, 2014, he was not selected as a Paralegal Specialist, under vacancy announcement number ST-1117374-306-14-DAL-MW. On November 22, 2016, the Agency dismissed Complainant’s complaint for untimely contact with an EEO counselor, and Complainant appealed the Agency’s dismissal to the Commission. On June 8, 2017, the Commission reversed the Agency’s dismissal, finding that Complainant did not become aware of his non-selection until May 18, 2016. Complainant’s complaint was remanded to the Agency for investigation. Lenny W. v. Social Security Administration, EEOC Appeal No. 0120170988 (Jun. 8, 2017). At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish a prima facie case of discrimination based on age, sex, or reprisal. The Agency noted that S1 was also male, and that both selectees were older than Complainant. The Agency also determined that Complainant had not shown that the management officials were aware of his prior EEO activity. The Agency found that, nevertheless, management officials articulated legitimate, nondiscriminatory reasons, stating that both selectees were better qualified than Complainant. The Agency then found that Complainant did not show that the reasons were pretext for discrimination because he did not show discriminatory intent in his non-selection or that he was a substantially superior candidate to the selectees. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency filed an opposition to Complainant’s appeal. The Agency noted that during the hearing stage, the Agency filed a supplement to the ROI, showing that a third selectee (S3) (age 41, male, no prior EEO activity) was hired after the initial selection. The Agency argued that all three selectees showed at least five years of experience in ODAR, and that Complainant did not show that the management officials’ reasons for their selections were pretext for discrimination. 20190053983 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 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”). Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, sex, and in reprisal for prior EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for not selecting Complainant as a Paralegal Specialist. SO stated that he accepted FOD’s recommendation in making the selection.2 While SO stated that he could not provide FOD’s detailed rationale, he noted that the selectees had already worked in ODAR for five years and while ODAR experience was not a requirement, it was considered an advantage. SO also stated that the ODAR work was “not closely correlated” to the work done in the Field Offices, and that the skillsets of a Claims Specialist were not the same as for Paralegal Specialists. The record also shows that SO noted that S1 and S2 received numerous compliments for their work, and he praised S3’s writing skills and knowledge of the Agency’s rules and regulations. ROI at 133-6,139- 40. 2 SO noted that FOD retired in April 2015. The EEO investigator requested FOD’s participation in the instant complaint, and she declined. ROI at 283. 20190053984 We find that Complainant has not shown that the proffered reasons were pretext for discrimination. In a non-selection case, pretext may be 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). Here, Complainant stated that he was better qualified because he had been in private practice for years, graduated with honors from law school,3 and received performance awards. ROI at 124. However, the record shows that S1 and S2 also had years of private practice experience as attorneys and received performance awards. ROI at 202,207,215,220. While S3 did not attend law school or have experience as an attorney in private practice, we note that this was not a consideration for the Paralegal Specialist position. The record shows that S3 was a Lead Senior Case Technician in ODAR, and he performed the duties of a legal assistant. 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)). 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 Dept. of Community Affairs, 450 U.S. at 259. In this case, we find that Complainant only made bare assertions, and he has not shown any evidence of unlawful discrimination. As such, we find that Complainant did not establish that the Agency discriminated against him based on age, sex, or in reprisal for prior EEO activity, when it did not select him for a Paralegal Specialist position. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 3 We note that Complainant’s application does not show that he graduated law school with honors. ROI at 194. 20190053985 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. 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. 20190053986 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 August 27, 2020 Date
