Jerry L. Myles,
Complainant,

v. 

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120092511

Agency No. HQ-08-00599-SSA

DECISION

On May 29, 2009, Complainant filed an appeal from the Agency's May 27,
2009, 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.  The Commission accepts the appeal
pursuant to 
29 C.F.R. § 1614.405(a).  For the following reasons, the Commission
REVERSES the Agency's final decision.

ISSUE PRESENTED

The issue presented is whether the Agency met its obligation to provide a
legitimate, non-discriminatory reason for its selection decision regarding
the Lead IT Specialist position, advertised under vacancy announcement
number K-2116.

BACKGROUND

At the time of events giving rise to this complaint, Complainant
worked as an Information Technology Specialist (IT Specialist), GS-12,
in the Mainframe Integration and stress Testing Branch of the Division
of Integration and Environmental Testing, Office of Telecommunication
and System Operations, Office of Systems, at the Agency's facility in
Baltimore, Maryland.  On April 20, 2007, Complainant applied for the
position of IT Specialist (SYSANA), GS-2210-13, #3C385, advertised under
vacancy announcement number K-2103.  The vacancy announcement stated
that candidates would be rated against the following ranking criteria:
(A) knowledge of SSA's enterprise database architecture; (B) knowledge
of SSA's application testing process; (C) ability to develop and present
technical documentation for management; and (D) training/self-development.
A Referral of Eligibles memorandum, dated May 11, 2007, forwarded a
list of nine candidates, including Complainant, to the review panel for
evaluation.  According to a Review Panel Combined Summary Sheet dated
August 14, 2007, the three-member review panel (P1, P2, P3) rated the
candidates' applications based on twelve assessment criteria.  Out of
a possible 175 points, Complainant received 85 points and the selectee
(Caucasian, female, 46, no prior EEO activity) received 175 points.
According to a Best Qualified List (BQL) certified by a Human Resources
Specialist (HRS) on August 16, 2007, the selectee and another candidate
(who received 95 points) were referred to the selecting official for
further consideration.  On November 8, Complainant was informed that he
had not been selected for the position.  

On June 1, 2007, Complainant applied for the position of Lead IT
Specialist (SYSANA), GS-2210-13, #4C1650, advertised under vacancy
announcement number K-2116.  The vacancy announcement stated that
candidates would be rated against the following ranking criteria:
(A) skill in managing projects; (B) ability to communicate orally
and in writing; (C) ability to facilitate the processing of changes
through the Software Development Life Cycle; (D) skill in problem
resolution, integration and production environment support; and (E)
training/self-development.  A Referral of Eligibles memorandum, dated
June 11, 2007, forwarded a list of 16 candidates to the review panel
for evaluation.  

According to a Review Panel Combined Summary Sheet dated June 22,
2007, the three-member review panel (P4, P5, P6) rated the candidates'
applications based on twelve assessment criteria.  Out of a possible
115 points, Complainant received 15 points and the selectee (Caucasian,
female, 50, no prior EEO activity) received 115 points.  According to
a BQL certified by HRS on June 27, 2007, the selectee and two other
candidates (who received 75 points and 70 points, respectively) were
referred to the selecting official for further consideration.  On July
20, 2007, Complainant e-mailed HRS to formally request a re-evaluation
of his application and wrote, "I'm definitely not in agreement with
the low amount of points received for this vacancy by the panel."
According to an undated "Re-evaluation of Application" signed by P4,
P5, and P6, the review panel completed a second review of Complainant's
application and concluded that the scores assigned during the initial
review were correct.  The document summarized the decisions reached by
the review panel for each assessment criteria based on the contents of
Complainant's application.  On October 30, 2007, Complainant was informed
that he had not been selected for the position.  

On December 14, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), age (56), and reprisal for prior protected EEO activity1
when:  

1.	He was not referred for selection for the Lead IT Specialist
position, advertised under vacancy announcement number K-2116; and

2.	He was not referred for selection for the IT Specialist position,
advertised under vacancy announcement number K-2103. 

At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ).  Complainant
timely 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 decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

In its final decision,2 the Agency stated, "We will assume, arguendo,
that a prima facie case has been satisfied."  However, the Agency
then found that Complainant failed to establish a prima facie case
of discrimination in either claim on the bases of race, sex, age,
and reprisal.  Regarding his prima facie case of discrimination on the
bases of race, sex, and age, the Agency found that Complainant did not
show he was treated less favorably than members outside of his protected
groups.  Specifically, the Agency noted that the selectees were within
Complainant's protected age group and that candidates outside of his
protected groups were also not included on the BQLs.  In addition,
the Agency found that Complainant was not similarly situated to the
candidates who made the BQLs.  In claim 1, the Agency found that the
record did not show where Complainant addressed the KSAs3 sufficiently,
whereas the candidates who made the BQL discussed each of the criteria
in detail reflective of the number of points they received.  In claim 2,
the Agency found that Complainant did not receive points for "knowledge of
SSA's enterprise database architecture," whereas others who made the BQL
addressed specific methods and systems with which they were familiar.  

Regarding his prima facie case of discrimination on the basis of reprisal,
the Agency found that there was no nexus between Complainant's prior EEO
Activity and the non-selections at issue.  The Agency noted that only two
of the six panel members were aware of Complainant's prior EEO activity
and found that there was not enough evidence to suggest that such a
"minority" of panel members improperly influenced the review panels.
In addition, the Agency found that, even though Complainant attested
that his first and second-level supervisors were aware of his prior EEO
activity, they did not have any involvement in determining who would be
recommended for placement on the BQLs.	Further, assuming, arguendo,
that all the panel members were aware of his prior EEO activity, the
Agency found that it did not give rise to an inference of a retaliatory
motive because at least two years had passed between Complainant's prior
EEO activity and his non-selections. 
 
Next, the Agency found that management articulated legitimate,
nondiscriminatory reasons for its actions.  In claim 1, the Agency found
that the review panel "distributed points based upon the applicants'
demonstration/indication of knowledge in the applicable areas."  In claim
2, the Agency found that the review panel "distributed points for each
assessment criterion based directly on the extent to which each applicant
demonstrated the requisite knowledge and experience in his/her application
materials."  Finally, the Agency found that Complainant failed to show
that the Agency's articulated reasons were a pretext for discrimination
or that any of the panel members harbored a discriminatory animus towards
him based on race, sex, age, and reprisal.  

CONTENTIONS ON APPEAL

On appeal, Complainant asserted, "I do not agree with the [Agency]'s
decision, please investigate."	The Agency did not submit a statement
on appeal.  

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 (MD-110), at
Ch. 9, § VI.A. (Nov. 9, 1999) (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).  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. Co. 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, 441
U.S. at 804 n.14.  The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions.  Texas 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
Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks,
509 U.S. 502, 519 (1993).  


Claim 1 - Complainant's Prima Facie Case

In the non-selection context, Complainant may establish a prima facie
case of race, sex, and age discrimination by showing that: (1) he is a
member of a protected class; (2) he was qualified for the position; (3)
he was not selected for the position; and (4) he was accorded treatment
different from that given to persons otherwise similarly situated who
are members outside of his protected group.  EEOC Enforcement Guidance
on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002
(Sept. 18, 1996); Williams v. Dep't of Educ., EEOC Request No. 05970561
(Aug. 6, 1998).  Regarding his non-selection in claim 1, the record
reflects that Complainant has shown that: (1) he is an African-American
male, age 56; (2) he was on the list of qualified employees referred
to the review panel; (3) he was not selected for the position; and (4)
the selectee was a Caucasian female, age 50.  

Under the ADEA, all personnel actions in federal employment "shall be
made free from any discrimination based on age."  29 U.SC. § 633a(a).
The Supreme Court has held that because the ADEA prohibits discrimination
on the basis of age and not class membership, the fact that a similarly
situated comparative is substantially younger than the plaintiff is a
far more reliable indicator of age discrimination than the fact that
the plaintiff was treated differently than someone outside his protected
class.	See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996).  While there
is no bright-line test for what constitutes "substantially younger,"
that term has generally been applied to age differences in excess of
five years.  See Blinick v. Dep't of Hous. and Urban Dev., EEOC Appeal
No. 07A20079 (Feb. 3, 2004) (citing Hammersmith v. Soc. Sec. Admin., EEOC
Appeal No. 01A05922 (Mar. 6, 2002)).  Regarding his non-selection in claim
1, the record reflects that, during the relevant time, Complainant was
56 and the selectee was 50.  Although the selectee is in Complainant's
protected age group, we find that the six year age difference between
Complainant and the selectee is sufficient to establish an inference
of age discrimination.	Therefore, we find that Complainant in claim 1
established a prima facie case of discrimination on the bases of race,
sex, and age.  

Complainant may establish a prima facie case of reprisal discrimination
by showing that: (1) he engaged in a protected activity; (2) the Agency
was aware of the protected activity; (3) subsequently, he was subjected
to adverse treatment by the Agency; and (4) a nexus exists between the
protected activity and the adverse treatment.  Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).  Regarding his
non-selection in claim 1, the record reflects Complainant filed a prior
EEO complaint in 2005.	However, P4, P5, and P6 all attested that they
were unaware of Complainant's prior EEO activity and Complainant offered
no evidence to the contrary.  Therefore, we find that Complainant in
claim 1 failed to establish a prima facie case of discrimination on the
basis of reprisal.  




Claim 1 - Agency's Legitimate, Nondiscriminatory Reason

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 Dep't of Cmty. Affairs v. Burdine, 450
U.S. at 253.  The Supreme Court has described this burden as being met
"if the [agency's] evidence raises a genuine issue of fact as to whether
it discriminated against the [complainant]," and that "[t]o accomplish
this, the [agency] must clearly set forth, through the introduction of
admissible evidence, the reasons for the [complainant's] rejection."
Id. at 254-55.	Moreover, the agency must "frame the factual issue with
sufficient clarity so that the [complainant] will have a full and fair
opportunity to demonstrate pretext," with the adequacy of its evidence
"evaluated by the extent to which it fulfill[ed] these functions."
Id. at 255-56.	The burden incumbent upon the agency to respond to
complainant's prima facie case with a legitimate, nondiscriminatory reason
for its actions is a burden of production, not persuasion.  Reeves, 530
U.S. at 142.  While the agency's burden of production is not onerous,
it must nevertheless provide a specific, clear, and individualized
explanation for the treatment accorded complainant.  Lorenzo v. Dep't
of Def., EEOC Request No. 05950931 (Nov. 6, 1997).  

Upon review of the record, we find that the Agency has failed to meet
its burden of articulating a legitimate, nondiscriminatory reason for
its actions.  In its final decision, the Agency articulated that the
record did not show where Complainant addressed the KSAs sufficiently,
whereas the candidates who made the BQL discussed each of the criteria in
detail reflective of the number of points they received.  However, we find
that this is not a specific, clear, and individualized explanation for
Complainant's failure to make the BQL.	Although the Agency explained that
the BQL candidates scored higher on their applications than Complainant
because their applications more thoroughly addressed the assessment
criteria, we find that the record does not contain any testimonial or
documentary evidence of such a comparison.  

First, the affidavit testimony of P4, P5, and P6 only explained the
general mechanics of the application evaluation process4 and failed to
provide an individualized explanation for Complainant's specific score.
The testimonial evidence provides no explanation as to why Complainant's
application received a lower score or what qualities, if any, made the
selectee better qualified for the position than Complainant.  In fact,
there was no testimony from P4, P5, or P6 specifically mentioning
Complainant or the selectee in the context of the selection process,
except for P4's testimony that, "[a]t this time, I do not independently
recall [Complainant's] application or any of the others, for that
matter."  

Second, the record does not contain the applications of the selectee or
the two other candidates who made the BQL.  Although the record contains
a "Re-evaluation of Application" from the review panel explaining why
Complainant's application received the points it did for each of the
twelve assessment criteria, we find that this document provides us
with no insight on how Complainant's qualifications were evaluated in
comparison with the qualifications of the selectee or the two other
BQL candidates.    

Based on the above, we find that the Agency failed to articulate a
specific, clear, and individualized explanation for its actions, and
consequently, Complainant was denied a fair opportunity to demonstrate
pretext. See Young v. Dep't of the Treasury, EEOC Request No. 05940517
(Oct. 13, 1995).  Thus, the Agency failed to rebut the inference of
discrimination by articulating a legitimate, nondiscriminatory reason
for its actions.  Therefore, we find that Complainant was subjected to
discrimination based on his race, sex, and age when he was not selected
for the position.5

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the Agency's
final decision.  The Agency will comply with the Order below.

ORDER

Unless otherwise indicated, the Agency is ordered to take the following
remedial action within sixty (60) days of the date this decision becomes
final: 

1. Offer Complainant the position of Lead IT Specialist (SYSANA),
GS-2210-13, or a substantially equivalent position, at the Baltimore,
Maryland location, retroactive to the date of his non-selection, on or
about October 30, 2007.  Complainant shall have fifteen (15) days from
the date of the offer to accept or decline the position.  If Complainant
should decline the Agency's offer of a position, the date of his rejection
shall be the end date for any back pay due Complainant.    

2. The Agency shall determine the appropriate amount of back pay, with
interest, and other benefits due Complainant since on or about October
30, 2007, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final.  Complainant
shall cooperate in the Agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the Agency.	If there is a dispute regarding the exact amount of back
pay and/or benefits, the Agency shall issue a check to Complainant for
the undisputed amount within sixty (60) calendar days of the date the
Agency determines the amount it believes to be due.  Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."

3. The Agency shall conduct a supplemental investigation on compensatory
damages, including providing Complainant an opportunity to submit evidence
of pecuniary and non-pecuniary damages. For guidance on what evidence is
necessary to prove pecuniary and non-pecuniary damages, the parties are
directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages
Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992)
(available at eeoc.gov.) The Agency shall complete the investigation and
issue a final decision appealable to the EEOC determining the appropriate
amount of damages within 150 calendar days after this decision becomes
final.

4. The Agency shall provide eight (8) hours of EEO training to the
responsible management officials regarding their responsibilities under
EEO laws.

5. The Agency shall consider taking appropriate disciplinary action
against the responsible management officials.  The Commission does not
consider training to be disciplinary action.  The Agency shall report
its decision to the Compliance Officer.  If the Agency decides to take
disciplinary action, it shall identify the action taken.  If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.  If any of the responsible
management officials have left the Agency's employ, the Agency shall
furnish documentation of their departure date(s).  

The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."  The report shall include supporting documentation verifying
that the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Baltimore, Maryland facility copies
of the attached notice.  Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted.  The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.

		   IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013.  The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order.  29 C.F.R. §
1614.503(a).  The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).	Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action."  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013.  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 (R0610)

This is a decision requiring the Agency to continue its administrative
processing of your complaint.  However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision.  In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission.  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.  Filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security.  See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within
the sole discretion of the Court.  Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
    
FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


__2/10/11________________
Date


1 On March 18, 2008, Complainant attested that, to the best of his
recollection, he filed his most recent formal complaint in 2005 and had
two cases pending on appeal before the Commission.    
2 The Agency's final decision referred to the K-2103 non-selection as
claim 1 and the K-2116 non-selection as claim 2.  Because Complainant's
K-2116 non-selection occurred before his K-2103 non-selection, we have
re-numbered the claims.  

3 It appears that the Agency is referring to the ranking criteria.
The vacancy announcement stated the ranking criteria but did not
specifically mention any KSAs.	   
4 P4, P5, and P6 attested that they separately read the applications,
gave points to each application based upon the pre-established assessment
criteria, and convened to reach an agreement on the candidates' final
scores.  
5 Based on this finding, it is not necessary to address Complainant's
non-selection in claim 2 because he would not be entitled to further
relief.  
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013   



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