U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alline B,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120162182 Agency No. OCO-15-0830-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 May 20, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 prove that she was subjected to age discrimination when the Agency did not select her for a Supervisory Customer Service Technician position. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-8 Customer Service Technician at the Agency's Data Operations Center facility in Wilkes-Barre, Pennsylvania. In this position, Complainant primarily interviewed by telephone potential beneficiaries and provided explanations regarding various social security programs. From March 5, 2015 until March 15, 2015, the Agency advertised three Supervisory Customer Service Technician positions, at the GS-962-09/11/12 levels. The position was a temporary position, not to exceed one year. Applicants for a GS-9 position had to have at least 52 weeks of specialized experience at least equivalent to the GS-8 level in federal service. Additionally, applicants for GS-9 positions must have had specialized experience that provided them with good working knowledge of Agency-administered programs and automated systems; communicated orally with Agency customers to explain, and/or provide program information; and conveyed information in writing. In March 2015, Complainant applied for the Supervisory Customer Service Technician positon at the GS-9 level and was interviewed. Complainant was not selected, and the Agency chose an applicant born in 1988 (C1) for the GS-12 position; an applicant born in 1987 for a GS-9 (C2) position; and an applicant born in 1974 for another GS-9 position. On September 21, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the basis of age (born in 1958) when on June 10, 2015, the Agency did not select her for the position of Supervisory Customer Service Technician, advertised under Vacancy Announcement Number SW-1341541-15-WB-1324. In an investigative statement, Complainant stated that she should have been selected for the position because she was listed on the Best Qualified List; is an enterprising team player known for boosting revenues and elevating productivity through strategic integration of marking and customer service initiatives; is a dynamic communicator with proven history of mentoring employees and maximizing individual and group success; and has over 20 years of experience complemented by a robust background in diverse industries. Complainant also started that she has two college degrees and had been a Project Manager for outside ventures. Complainant stated that her interview only lasted approximately 10 minutes and did now allow her the opportunity to fully expand upon her qualifications. Complainant further stated that there appeared to be an ongoing trend at the Agency of hiring and promoting based on age and familial relationships. The Deputy Director (born in 1970) stated that he reviewed application materials of those on the Best Qualified List, and met with the Customer Service Branch Manager (Branch Manager), the Deputy Customer Service Branch Manager (Deputy Branch Manager), and the Director to come to a consensus on what candidates should be recommended to the Director for selection. The Deputy Director further stated that he considered candidates' job performance, work experience, education, the recommendations of supervisors, and interview results in evaluating applicants. He stated that a rating or scoring system was not utilized in evaluating the candidates. The Deputy Director further stated that he did "not recall specifically why Complainant was not recommended and/or selected" and did not recall the specifics of the credentials of the selectees in comparison to Complainant's credentials. The Branch Manager (born in 1965) stated that she was the recommending official for the position at issue. She stated that Complainant was on the Best Qualified list. The Branch Manager further stated that she evaluated the applicants based upon their SSA-45 form responses, their most recent evaluations, supervisors' recommendations and feedback, and the interviews. She further stated that the interviews were scored, and Complainant received a score of 20 out of 40 points. When asked by the investigator why Complainant was not selected, the Branch Manager stated that there was a competitive pool of candidates and a limited number of vacancies, and other candidates demonstrated stronger knowledge, skills, and abilities for the vacant position. The Deputy Branch Manager (born in 1980) stated that he conducted some candidate interviews and reviewed the Branch Manager's recommendations prior to bringing them forward to the selecting officials. He further stated that the interviews had a scoring system wherein candidates could receive up to 40 points, and Complainant received 20 points. The Director (65 years old) stated that she met with the recommending officials and discussed the candidates' qualifications, interview performances, supervisory recommendations, job performance, experience, and education, and found their proposed selections to be "well-reasoned" and concurred with those recommendations. The Director further stated that a rating or scoring system was not utilized to make the selections, and Complainant was not selected because the selectees were more qualified. The Assistant Associate Commissioner (born in 1952) stated that he served as the concurring official for the selections, and he approved the recommendations of the Director and her management team. Final Agency Decision After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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 her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant maintains that she was eligible for the GS-9 Supervisory Customer Service Technician position at issue because she had been a Customer Service Technician since April 2008 and attained the GS-8 level in May of 2011, which exceeded the 52-week time-in-grade requirement. Complainant reiterates her claim that management preferred and chose the selectees because they are younger than she is. The Agency does not present any arguments on appeal. 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 The Commission generally applies the McDonnell Douglas framework to prove discrimination in cases alleging harm by a federal government employer under the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 633a(a). See Spencer v. U.S. Postal Serv., EEOC Appeal No. 0120042065 (Aug. 6, 2008) (applying McDonnell Douglas to ADEA claim); Carver v. Dep't of Justice, EEOC Appeal No. 07A30025 (Aug. 8, 2005) (same); Jones v. Bernanke (Federal Reserve System), 557 F.3d 670, 673 (D.C. Cir. 2009) (explaining in federal sector ADEA retaliation claim that "[w]hether brought under Title VII or the ADEA, . . . claims based on circumstantial evidence . . . trigger the familiar burden-shifting framework of McDonnell Douglas"). Specifically, the first step of the McDonnell Douglas burden-shifting framework requires a complainant to establish a prima facie case of age discrimination. To do so, the complainant generally must raise an inference of discrimination by showing: 1) she was 40 years of age or older; 2) she was subjected to an adverse employment action; 3) he was qualified for the job; and 4) there is some reason to infer that the action was related to age, such as ageist statements showing bias by the decisionmaker, or evidence that she was treated less favorably than someone substantially younger. While there is no bright line test for what constitutes "substantially younger," that term has generally been applied to age differences of at least five years. See Hammersmith v. Soc. Sec., EEO Appeal No. 01A05922 (Mar. 6, 2002); Burns v. Dept. of the Treasury, EEOC Appeal No. 0120102543 (Oct. 19, 2010). The burden of production 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. 248, 253 (1981). In this McDonnell Douglas analysis, the Supreme Court has long recognized that after the employer establishes a legitimate nondiscriminatory motive, the plaintiff/complainant "must be afforded 'an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim) (quoting Burdine, 450 U.S. 248, 253). Prima Facie Case In this case, Complainant was 57 years old during the relevant time period. The Agency deemed Complainant "best qualified" for the position, and Complainant applied for the position of Supervisory Customer Service Technician, advertised under Vacancy Announcement Number SW-1341541-15-WB-1324. The selecting officials for this position claimed that they did not know Complainant's age, but they also stated that they knew Complainant from working with her at the same Agency facility. Therefore, we are persuaded that management officials were aware that Complainant was over 40 years old. Additionally, the Agency did not select Complainant for the position, but selected applicants who were approximately 27, 28, and 41 years old, significantly younger than 57-year old Complainant. Consequently, we find that Complainant established a prima facie case of age discrimination. Burden of Production Because Complainant established a prima facie case of age discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant. Selecting officials stated that they did not select Complainant because she only received 20 out of 40 points for her interview, and the selectees were more qualified for the position. However, we note that while an agency's burden of production is not onerous, the agency must nevertheless provide a specific, clear, and individualized explanation for a non-selection so that the complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120121920 (June 25, 2014); Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011). Moreover, we have held that merely stating that a complainant was not selected because she was not as qualified as the selectees does not meet an agency's burden of production to explain a nonselection. See Waterford-Lifschultz v. Dep't of Homeland Security, EEOC Appeal No. 0120113819 (Sep. 20, 2013) (age discrimination found where Agency merely asserted that the selectee was chosen because of "her qualifications, experience, and her degree," which did not meet Agency's burden of production to explain why Complainant was not selected); Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004) (agency failed to meet its burden of production by stating in two short affidavits only that complainant was "not the best qualified for the position"); Wilson v. Dep't. of Veterans Affairs, EEOC Appeal No. 01995055 (Dec. 21, 2001) (agency's conclusory statement that complainant was not best-qualified candidate failed to meet burden to articulate legitimate, non-discriminatory reason for non-selection and thwarted fact-finder's ability to comparatively analyze candidates). Consequently, we find that the Agency's assertion of this reason in this case does not meet its burden of production. Additionally, selecting officials stated that Complainant was not selected because other candidates demonstrated stronger knowledge, skills, and abilities for the vacant position. However, this too is a vague and conclusory explanation akin to merely asserting that other candidates were "better qualified" than Complainant. This asserted reason is so vaporous that it deprives Complainant of any meaningful opportunity to rebut it. See also EEOC v. Target Corp., 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated qualities applicant failed to meet in order to articulate legitimate, nondiscriminatory reason so applicant would know what evidence to present to establish pretext). Further, the Branch Manager and Deputy Branch Manager suggested that Complainant was not selected because she only received 20 out of 40 points for her interview. We note that this claim is contradicted by the Director and Deputy Director, who asserted that a scoring or rating system was not used in the selection process. At any rate, even if applicants were rated or scored, the Agency did not explain why it assigned Complainant such a score, nor did it provide the investigator with or any documentation revealing the reasoning and justification behind Complainant's purported score. We have held that an agency does not meet its burden of production when it merely states that a complainant was not selected because he received lower scores from selecting officials than the selectee, without explaining the specific reasoning for the scores. See Bakken v. Dep't of Transportation, EEOC Appeal No. 0120093529 (Aug. 8, 2011) (age discrimination found where Agency did not meet burden of production by merely stating that Complainant was not selected because he received a lower score than most of the selectees but did not provide the assessments, bases, or factors behind its decisions); Myles v. Soc. Sec. Admin., EEOC Appeal No. 0120092511 (Feb. 10, 2011) (Agency failed to meet burden of production when it merely said that Complainant was not selected because Review Panel ranked him lower in scoring because this was not a specific, clear, and individualized explanation for Complainant's non-selection); Glomski v. U.S. Postal Serv., EEOC Appeal No. 01955157 (July 17, 1997) (Agency failed to meet its burden of production because it did not provide an explanation of the review committee's assignment of scores to Complainant and the selectee).2 Additionally, we note that the Agency inexplicably did not provide any information about the scores or points received by the selectees. As such, the assertion that Complainant received 20 points for her interview is utterly meaningless and without context. Therefore, the Agency's claim that Complainant's nonselection was based on her score also does not meet the Agency's burden of production. 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), request for reconsideration denied, EEOC Request No. 05A50685 (Apr. 26, 2005); Fullman v. U.S. Postal Service, EEOC Request No. 01A31036 (Mar. 18, 2004). Thus, the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of age discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, we find that the Agency discriminated against Complainant based on her age when it did not select her for a GS-9 Supervisory Customer Service Technician position. CONCLUSION Accordingly, 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 and REMAND this matter to the Agency for further actions consistent with this decision and the ORDERS below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall offer Complainant the position of GS-9 Supervisory Customer Service Technician, or a substantially equivalent position, in Wilkes-Barre, Pennsylvania, not to exceed one year. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position. 2. The Agency shall provide eight (8) hours of in-person EEO training to all selecting and responsible management officials in this case, including the Director, Deputy Director, Customer Service Branch Manager, the Deputy Branch Manager, and the Assistant Associate Commissioner. The training shall focus on management's responsibilities to prevent age discrimination and reprisal under EEO laws. 3. The Agency shall consider taking appropriate disciplinary action against the Director, Deputy Director, Customer Service Branch Manager, the Deputy Branch Manager, and the Assistant Associate Commissioner. 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 SO1 or SO2 have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order." 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 (G1016) The Agency is ordered to post at its Wilkes-Barre facility copies of the enclosed 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 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 (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 12-08-2017 __________________ 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 The Agency's final decision reports that the Director stated that Complainant did not have the time-within-grade and specialized experience to meet the requirements of the position. However, no such assertion was made by the Director in her statement. Further, the record clearly reflects that Complainant was qualified for the position through both time-within-grade and specialized experience, as reflected in the fact that the Agency placed Complainant on the Best Qualified List" for the position. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162182 2 0120162182