U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliot J.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161848 Agency No. HQ-15-0552-SSA DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's 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 REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not establish that his non-selection was motivated by discrimination based on his protected classes as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant previously worked as a Social Insurance Specialist, GS-13, with the Agency's Office of Retirement and Disability Policy (ORDP), Office of Income Security Programs (OISP), in Baltimore, Maryland, from November 2005 through September 30, 2010, and from August 23, 2013, until he retired on July 31, 2015. Report of Investigation (ROI), Ex. 6, at 1-2. On March 16, 2014, Complainant applied for the position of Supervisory Social Insurance Specialist, GS-14, advertised under Job Announcement No. SH-1072650. Complainant made the Best Qualified List (BQL) and was interviewed by a four-member panel comprised of the Team Leader, the Deputy Director, the Program Advisor, and another Team Leader. ROI, Ex. 31, at 2. The Associate Commissioner, who served as the selecting official (SO), made three selections for the vacancy at issue, but Complainant was not one of them. Complainant became aware of his non-selection via an office e-mail announcement on March 17, 2015. The Associate Commissioner made the following selections: Selectee Age Race/National Origin Sex Protected EEO Activity 1 37 Asian Male No 2 30 Hispanic/Latino Male No 3 41 Hispanic/Latino Female No ROI, Ex. 30, at 1. According to the SO, 13 candidates including Complainant's name were referred to her for consideration. Id., Ex, 7, at 4-5. The SO attested that she chose the three selectees she felt they were the most highly qualified candidates, would be the most effective team leaders, and had the best interpersonal skills. Id. The SO further only stated that she did not feel that Complainant was the most highly qualified candidate. Id. Complainant however attributed his non-selection to his protected bases, asserting that he was overlooked for vacancies in 2014-2015 for which he was listed as the best qualified candidate. On July 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Hispanic), age (58), sex (male), and reprisal for prior protected EEO activity when on March 17, 2015, he was not selected for the position of Supervisory Social Insurance Specialist, GS-14, advertised under Job Announcement No. SH-1072650. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. The Agency specifically found that Complainant failed to establish a prima facie case of discrimination based on his protected classes. In so finding, the Agency noted that although a female was one of the selected candidates, management offered an explanation for her selection. The Agency also noted that although all three candidates were significantly younger, Complainant failed to provide any evidence of age discrimination. The Agency additionally noted that although two of the selectees were of a different race and national origin than Complainant, he simply failed to provide any evidence of discrimination. The Agency further found that Complainant failed to show that the SO actually had knowledge of his protected EEO activity. The Agency also found that Complainant failed to show that its legitimate, nondiscriminatory reasons were pretext for discrimination. CONTENTIONS ON APPEAL Complainant's Brief on Appeal On appeal, Complainant contends, in pertinent part, that a report for the top 13 candidates for the vacancy showed that he was ranked ahead of the selectees in second place. Complainant contends that the interview panel gave him the maximum points allowed. Complainant asserts that for three years he held a position equivalent to a GS-14/15 Area Director in the Foreign Service, supervising three field offices with 37 employees. Complainant maintains that no other selectee demonstrated such experience. Complainant also asserts that from 2005 through 2015 he applied for more than 40 vacancies to GS-14 potions, but was never selected even though he was referred to the selecting official each time. Complainant maintains that he retired only because he felt his career was going nowhere. Complainant additionally asserts that a former coworker was promoted to a GS-14 position on the basis that not enough older employees over the age of 40 were being promoted in the division. Complainant maintains that he filed EEO complaints in 2009 and 2013, which management untruthfully denied knowledge of. Agency's Response In response, the Agency argues that Complainant failed to establish a prima facie case of discrimination because he did not show facts that would lead to an inference of discrimination. In so asserting, the Agency maintains that Complainant has not pointed to any evidence that would show that any of his protected classes were involved in his non-selection. The Agency also argues that it articulated legitimate, nondiscriminatory reasons for Complainant's non-selection; namely, that the SO selected the selectees because she felt they were the most highly qualified and would be the most effective team leaders. The Agency further noted that the SO did not feel that Complainant was the most highly qualified candidate. The Agency noted that the interview panel provided similar statements for the investigation to that of the SO. 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"). ANALYSIS AND FINDINGS Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant's Prima Facie Case Complainant may establish a prima facie case of discrimination in the non-selection context 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 not members of her protected group, or in the case of age, who are considerably younger than him. Obas v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002); Williams v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). In the instant case, we find that the Agency erred in finding that Complainant failed to establish a prima facie case of discrimination based on his age, race, national origin, and sex. There is no dispute that Complainant established prongs 1-3 listed above. There is further no dispute that all the selectees were significantly younger, with two out of the three selectees being under the age of 40. In addition, at least one selectee was outside of Complainant's race, national origin, and sex. The Agency, in asserting that Complainant did not establish a prima facie case, asserts that Complainant did not show any evidence that the SO was motivated by discriminatory animus. Nevertheless, Complainant clearly has met prongs 1-4, as noted above. Therefore, we find that Complainant has established the relatively light burden of a prima facie case of discrimination based on his age, race, national origin, and sex. See Fullman v. U.S. Postal Serv., EEOC Appeal No. 01A31036 (Mar. 18, 2004) (complainant established a prima facie case on the bases of race, age and sex by demonstrating that a similarly situated person not of his race, age, and sex was treated more favorably than he when that person was selected for the position); Garrett v. U.S. Postal Serv., EEOC Appeal No. 07A30024 (Feb. 25, 2004) (Complainant established a prima facie case based on sex simply by showing that male individuals were selected over her). Agency's Legitimate Nondiscriminatory Reason Once a complainant has established a prima facie case, 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. 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 a 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 a complainant. Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997); see also Woodward v. Dep't of Labor, EEOC Appeal No. 01970288 (Feb. 1, 2000) (agency failed to meet its burden of production with sufficient particularity when the selecting official's affidavit stated that the selectee was better qualified for the position because of her background, her superior experience in the field of interest, and her interview responses showing she had the perspective and attitude toward the position that would ensure success in the office). Upon review of the record, we find that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason for Complainant's non-selection. Specifically, we find that the SO failed to provide a specific, clear, and individualized explanation for Complainant's non-selection for the position at issue. As noted above, the SO only explained that she chose the three selectees because she felt they were the most highly qualified candidates and would be the most effective team leaders based on their "qualifications, leadership abilities, and interpersonal skills." ROI, Ex. 7, at 4. The SO further simply stated that she did not feel that Complainant was the most highly qualified candidate. We find that the SO's affidavit testimony is not sufficiently particularized or specific to permit Complainant to mount an evidentiary challenge to any of the explanations offered by her for Complainant's non-selection. The SO's affidavit puts forth no objective facts to support her vague, generalized conclusions that the selectees were more qualified because of their leadership qualities or interpersonal skills. For instance, the SO's affidavit provided no specific examples of how or why S1, S2, and S3, were better qualified than Complainant based on their application and/or interview. The SO also provided no examples of why she believed S1, S2, and/or S3 presented superior leadership qualities or interpersonal skills than Complainant. We note that the SO contends that the selectees possessed superior qualifications even though Complainant was ranked higher and received a higher score from the selection panel than two of the three selectees. ROI, Ex. 24, at 1. The SO also stated that Complainant's "nonselection was not the result of a lack of knowledge, experience, education, and/or specialized knowledge," but she simply found the selectees to be superior. ROI, Ex. 7, at 4. The SO however does not describe why she believed the selectees to be superior or provide any evidence to support such a conclusion. Given the lack of specific details, we find the Agency's explanations are insufficient to afford Complainant a meaningful opportunity to prove the explanations to be untrue. Based on the above, we find that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection, and consequently, Complainant was denied a fair opportunity to demonstrate pretext. See Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011); Garcia v. Dep't of Homeland Sec., EEOC Appeal No. 01A32050 (Jan. 7, 2005), req. for recon. den'd, EEOC Request No. 05A50685 (Apr. 26, 2005); Young v. Dep't of the Treasury, EEOC Request No. 05940517 (Oct. 13, 1995). Thus, the Agency failed to rebut the inference of discrimination, which was created when Complainant established a prima facie case of race, national origin, sex, and age discrimination, by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, we find that the Agency discriminated against Complainant based on his race, national origin, sex, and age when it did not select him for the position of Supervisory Social Insurance Specialist, GS-14, advertised under Job Announcement No. SH-1072650.2 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 The Agency is ordered to take the following remedial actions within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall offer Complainant the position of Supervisory Social Insurance Specialist, GS-14, or a substantially equivalent position, at the Agency's Baltimore, Maryland facility retroactive to the date of his non-selection, on or about March 17, 2015. 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, pursuant to 29 C.F.R. § 1614.501. 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. 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. 4. The Agency shall provide eight (8) hours of EEO training to the SO regarding her responsibilities under EEO laws. 5. The Agency shall consider taking appropriate disciplinary action against the SO. The Commission does not consider training to be a 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 the SO has left the Agency's employ, the Agency shall furnish documentation of her departure date. 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 (G0617) The Agency is ordered to post at its Office of Retirement and Disability Policy (ORDP), Office of Income Security Programs (OISP), 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 both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 (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 02/22/18 __________________ Date 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. 2 We need not make a finding regarding whether the Agency discriminated against Complainant based on his prior EEO activity because any finding of discrimination on that additional basis would not affect the final remedy. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161848 10 0120161848