Carol Oleksiak v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION AGENCY. On…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-1148
_______________
CAROL OLEKSIAK,
Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER OF
SOCIAL SECURITY ADMINISTRATION AGENCY.
_______________
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cv-04723)
District Judge: Honorable Cynthia M. Rufe
Submitted Under Third Circuit LAR 34.1(a)
January 25, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
(Filed: May 4, 2007 )
__________________
OPINION OF THE COURT
__________________

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CHAGARES, Circuit Judge.
Appellant Carol Oleksiak (“Oleksiak”) appeals from the order of the District Court
granting summary judgment in favor of Appellee, the Social Security Administration
(“SSA”), on her claims for employment discrimination pursuant Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and as applicable to federal
employees, 42 U.S.C. § 2000e-16. The statutory basis for her age discrimination claim is
unclear from the record on appeal. For the purposes of this decision we assume the basis
is the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Oleksiak alleged
in her Complaint that the SSA discriminated against her on the basis of race, gender, and
age when she was passed over for promotion to one of twenty vacancies for the position
of Benefits Authorizer (“BA”). We will affirm.
I.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
over this appeal pursuant to 28 U.S.C. § 1291. We review a grant of summary judgment
de novo. Goosby v. Johnson & Johnson Medical Inc., 228 F.3d 313, 318 (3d Cir. 2000).
We apply the same standard as did the District Court. Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56©.

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The job requirements for a BA include calculating payments and deciding SSA1
claims based upon SSA policies and rules. A BA makes final determinations on issues
involving postadjudicative actions, entitlement to benefits and payments, and adjustments
to established benefits, among other things.
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II.
Because we write solely for the benefit of the parties, we need not undergo a
detailed recitation of the factual and legal background of this case.
On July 27, 1998, the SSA issued a vacancy announcement to fill twenty BA
positions. At that time, Oleksiak, a Caucasian woman, aged fifty-five, was employed as1
a clerk by the SSA. She joined the SSA full-time on August 7, 1995. Prior to joining
SSA, she worked primarily as a coordinator with the Environmental Protection Agency.
The vacancy announcement drew 190 interested applicants, including Oleksiak.
The SSA’s Staffing and Classification Team (“the Team”) was tasked with determining
who of the 190 individuals met the minimal qualifications for the position. Of the 190
original applicants, the Team concluded that 174 applicants satisfied eligibility and
minimum qualification requirements. Oleksiak was among this group of 174 to pass the
minimal qualification muster.
Culling the group to 174 candidates, the Team then arranged a “List of Eligibles”
(“the List”) to submit to selection committee officials who would choose the best
qualified candidates. The List was initially divided into two sections. The first section
consisted of individuals identified pursuant to the “competitive procedures” described in

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5 C.F.R. § 335.103(c)(1). These individuals were eligible and minimally qualified but
had never held the pay grade to which they now applied. There were approximately 166
candidates on this portion of the List, of whom Olekisak was one. The second section,
entitled “Exception to Merit Promotion Plan,” consisted of individuals identified in 5
C.F.R. § 335.103(c)(3). These candidates were eligible and minimally qualified but had
once permanently held a pay grade similar to or higher than the grade of the BA position.
There were approximately thirteen candidates on this section of the List.
The next step in the selection process entailed seeking comments from each
applicant’s supervisor. The SSA’s Mid-Atlantic Program Service Center is comprised of
four “Process Areas.” Each Process Area is supervised by an Operations Manager. Each
Operations Manager is responsible for four “Process Modules” within his or her Process
Area. Each Process Module has a supervisor who reports to the appropriate Operations
Manager. To facilitate the gathering of this information, the List was sorted by the
supervisor for whom the candidate worked, eliminating the original differentiation made
between “competitive” and “exempt” applicants. Additionally, some applicants were
employed outside the SSA’s Mid-Atlantic center. Supervisors of those applicants were
also solicited for comment. Oleksiak competed for BA positions not only with the other
applicants in her Process Area, but also with the candidates from the other three Process
Areas, as well as with candidates from other divisions within the SSA, like the
Philadelphia Teleservice Center and the Debt Management Section.

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The Operations Manager in charge of promotions, Genevieve Fardella, forwarded
each candidate’s name to that candidate’s first-line supervisor with the request that the
supervisor comment on six evaluation factors. The six factors were: (1) oral
communication; (2) written communication; (3) reliability/dependability; (4) potential
technical ability; (5) current performance; and (6) initiative. For comparison purposes, a
grid was developed which included the candidates’ names and the accompanying
comments. None of the documents used during the selection process contained the
candidates’ race, sex, or age. The SSA contends that none of the selection officials
discussed race, sex or age during the selection process.
After collecting and cataloging all of the pertinent information on the grid, the
supervisors, Operations Manager Fardella and the Deputy Operations Manager met to
discuss their experiences with each candidate. It was at this point that the candidates
were ranked. Oleksiak worked in Process Area #4. In this Process Area, twenty-six SSA
employees, including her, were initially determined to be eligible and minimally qualified
for the BA positions. Based on the supervisor comments, Oleksiak was ultimately ranked
sixteenth out of twenty-six from her group.
After ranking the candidates within their respective Process Areas, the List with all
the relevant commentary was sent to the final selection committee (a group of four
Operations Managers) to select the top thirty candidates. Oleksiak was not among the
candidates chosen in the top thirty. To parse the list to the desired number of twenty,

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Oleksiak retained counsel shortly after the SSA filed its motion for summary2
judgment.
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another round of discussions ensued between the members of the final selection
committee. To insure that each candidate selected for a BA position had the full support
of all the members of selection committee, the final list of twenty names was determined
by consensus and not by vote.
Perhaps disgruntled about not receiving a promotion to BA, Oleksiak filed a
complaint with the Equal Employment Opportunity Commission (“EEOC”). The EEOC
conducted an investigation and determined that of the twenty individuals chosen for
promotion, sixteen were female, and two were Caucasian. With regard to age, nine were
under forty, three were between the ages of forty and forty-two, three were between the
ages of forty-three and forty-seven, and three were between the ages of forty-eight and
fifty-two. The EEOC issued its final order on July 14, 2004 issuing Oleksiak a Right to
Sue letter, but declined to take further action. Oleksiak filed a pro se Complaint with the
District Court on October 7, 2004.2
The SSA moved for summary judgment, which the District Court granted by order
dated November 10, 2005. Oleksiak first argued that she should have been listed in the
“exempt” portion of the List rather than in the “competitive” portion. According to
Oleksiak, if she had been correctly identified as an “exempt” candidate, she would have
had a better chance for promotion to a BA position. The District Court held that it lacked

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jurisdiction to review the SSA’s application of its rules and regulations. Oleksiak could
seek relief under the grievance process pursuant to 5 C.F.R. § 335.103. However, to the
extent that Oleksiak claimed that her alleged mis-placement on the List was evidence of
discrimination, the District Court noted that “the method of selection did not distinguish
competitive from non-competitive [exempt] employees, and overall competitive
employees actually had a slightly higher rate of selection than the exempt employees.
Therefore even reading the facts in the light most favorable to Plaintiff, the Court finds no
genuine issue of material fact as to Plaintiff’s injury from her treatment as a competitive
employee.” (A17.)
With regard to her claims for discrimination based on race, sex and age, the
District Court applied the familiar burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The District Court concluded that
Oleksiak had met her burden to establish a prima facie case for discrimination based on
race and age, in that only two out of twenty people selected for the BA positions were
Caucasian and, although half were over the age of forty, none were as old as Oleksiak at
age fifty-five. However, the District Court determined that Oleksiak’s claim for gender
discrimination failed as a matter of law, because sixteen out of twenty candidates
promoted to the BA positions were female.
The burden then shifted to the SSA to demonstrate legitimate, non-discriminatory
reasons for its failure to promote Oleksiak to a BA position. The District Court agreed

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with the SSA’s explanation that the candidates were chosen strictly on the basis of their
supervisors’ comments on six job-related criteria. Oleksiak was not among the twenty
strongest candidates for the BA positions. Thus, she was not selected. As the facts bear
this out, the Court rightly concluded that the SSA articulated a legitimate, non-
discriminatory basis for its decision not to select Oleksiak.
Reviewing Oleksiak’s evidence of pretext, the District Court concluded that
Oleksiak failed to produce any evidence that discrimination was more likely than not a
motivating or determinative factor in her adverse employment decision. “Plaintiff clearly
was not among the twenty [ ] most outstanding candidates, based on ratings by her direct
supervisor; the same process was applied to Plaintiff as to all other candidates for the
position; and the evidence suggests that Defendant actually relied upon the stated
promotion criterion [sic].” (A21-A22.)
Four of the final twenty candidates chosen for BA positions came from Process
Area # 4, as did Oleksiak: Darlene Caldwell, Barbara K. Ennett, Angelina Johnson, and
Brian Wilkinson. Like Oleksiak, these four were also on the “competitive” portion of the
List. As a point of comparison, Oleksiak received the following comments from her
supervisors:
(1) oral communication: Carol communicates in a clear and concise
manner;
(2) written communication: While typing she will question and try to
resolve grammar and spelling mistakes made by the technicians;
(3) reliability/dependability: Assignments are completed in timely
manner. Her attendance is unstable. I believe this is due to personal

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Barbara Ennett’s comments were very similar to Darlene Caldwell’s and we3
forgo recitation of them here.
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situations;
(4) potential technical ability: Carol probably has the ability to
handle the BA position;
(5) current performance: Carol will take the initiative to handle
additional work;
(6) initiative: excellent.
Darlene Caldwell received the following comments:3
(1) Oral communication: She has demonstrated excellent skills in
this area. . . . Darlene has shown herself to be an effective listener
and has demonstrated that she possesses a command of language
skills;
(2) Written communication: Above average;
(3) Reliability/dependability: Darlene most effectively and in a
timely manner handles job activities. She regularly completes
assigned work and moves on to additional assignments.. Darlene
requests and schedules time off in a most prudent manner and can be
depended upon to make the most efficient use of her work time;
(4) Potential technical ability: In her current job, Darlene has
demonstrated the ability to effectively utilize and interpret
procedure; efficiency in processing work through MCDE, evaluates
casework issues and takes the proper corrective actions. Darlene has
shown outstanding potential for success in the BA position;
(5) Current performance: Outstanding. She was a ROC as well as
CASA awardee;
(6) Initiative: Great! Darlene is a self-starter, independent and shows
that she cares about the work.
Angelina Johnson’s supervisor said:
(1) Oral communication: Ms. Johnson is a truly outstanding
candidate for selection to the BA position. . . . Angelina has
demonstrated the ability to listen and convey information in an
appropriate manner. She performs these duties with compassion and
patience while maintaining a businesslike and professional

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demeanor;
(2) Written communication: Not observed;
(3) Reliability/dependability: Ms. Johnson’s leave has been used
appropriately with close adherence to office policy for requesting
leave in advance. She can be relied upon to perform all phases of
her duties;
(4) Potential technical ability: Ms. Johnson has a very quick mind
and adapts very well to changes in priorities and procedures, She has
a fine basic grasp of her workflow. Her technical potential is
outstanding;
(5) Current performance: Ms. Johnson’s performance is outstanding
in all areas;
(6) Initiative: Outstanding.
Finally, Brian Wilkinson’s comments were as follows:
(1) Oral communication: Outstanding. Makes the best impression in
all situations. Demonstrates proper telephone techniques and
etiquette. Presents views logically;
(2) Written communication: Not observed;
(3) Reliability/dependability: Above Average. Provides reliable
attendance. Exceptionally reliable and trustworthy. All deadlines
are exceeded;
(4) Potential technical ability: Outstanding. Strong powers of mental
retention and systematic observation. Adapts quickly to change.
Rapid learner;
(5) Current performance: Outstanding. Brian can be relied upon to
exceed all output expectations to an unusual degree. He shows
professional concern for quality of work;
(6) Initiative: Above Average. Displays a spirit of determination.
Performs beyond expectations. Totally absorbed in work.
Despite the overwhelmingly positive comments Brian Wilkinson received from his
supervisor, Oleksiak argued before the District Court that he did not meet minimum
eligibility requirements because he had only worked for the SSA for two years prior to
applying for the BA position. The vacancy announcement stated that eligible candidates

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must have at least three years of general experience or one year of specialized experience.
As the District Court noted, however, the vacancy announcement did not specify that
experience had to be gained through government employment. Wilkinson had prior,
general experience in non-governmental employment. Oleksiak did not proffer any
evidence to suggest that Wilkinson had not acquired an additional year of experience
outside the SSA and Oleksiak failed to point to any evidence suggesting Wilkinson
received preferential treatment based on his race, sex, or age.
In addition to the selectees who came from the same Process Area as Oleksiak,
Oleksiak identified Linda D. Preston and Roslyn Johnson, African-American women,
who received, according to Oleksiak, preferential treatment in the selection process
which, she argues, demonstrates the SSA’s discriminatory animus. Specifically, Oleksiak
contended that Roslyn Johnson’s name appeared in the exempt portion of the list; she was
the only candidate selected therefrom; and the SSA offered no explanation or justification
for her selection. As for Linda Preston, Oleksiak argued that the date of her application
reflected that it was submitted one year prior to the announcement of the position.
According to Oleksiak, the SSA should have rejected the application as being untimely,
but instead, Linda Preston was promoted to one of the BA positions. The District Court
found that these candidates were rated highly in the six job-related criteria and further
concluded that Oleksiak failed to demonstrate that these candidates were given any
special treatment in the selection process.

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Finally, Oleksiak pointed to the comment made by her supervisor that her
attendance was “unstable,” which Oleksiak argued was evidence of discrimination.
Accepting the statement as untrue for the purpose of the summary judgment motion, the
District Court rightly determined that it showed no discriminatory animus; that is animus
because of a protected characteristic. Likewise, the District Court determined that the
statement by Operations Manager Fardella that Oleksiak failed to distinguish herself from
better candidates pursuing openings for positions prior to the BA position was not
evidence of discrimination.
IV.
On appeal, Oleksiak argues that the District Court weighed conflicting evidence
and drew inferences unfavorable to her as the non-moving party, and therefore we must
vacate and remand for trial. We disagree. Oleksiak has not pointed to a shred of
evidence that would support a claim that she was refused a promotion for discriminatory
reasons. “To avoid summary judgment, the plaintiff's evidence rebutting the employer's
proffered legitimate reasons must allow a factfinder reasonably to infer that each of the
employer's proffered non-discriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action (that is, the proffered reason is
a pretext).” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (internal citations
omitted).
Oleksiak was clearly not among the highest qualified candidates for the promotion

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to BA. Though she may have been the oldest, that fact alone does not rebut the SSA’s
legitimate, stated reasons for not promoting her. Likewise, the fact that she is Caucasian
and the SSA promoted only two Caucasians out of twenty for BA positions, standing
alone, proves nothing. Oleksiak offers no evidence except her own conclusory statements
and suppositions as proof that the SSA’s decision not to promote her to a BA position was
made because of her race or her age. The non-moving party simply “may not rest upon
mere allegations, general denials, or . . . vague statements.” Quiroga v. Hasbro, Inc., 934
F.3d 497, 500 (3d Cir. 1991). Indeed, Oleksiak must “‘do more than simply show that
there is some metaphysical doubt as to the material facts.’” Id. (quoting Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Oleksiak’s arguments raised in this appeal have no merit and we agree with the
conclusions reached by the District Court.

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