EEOC Appeal 2020000873

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herman P.,1
Complainant,
v.
Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 2020000873
Hearing Nos. 420-2018-00001X; 420-2019-00049X; 420-2019-00051X
Agency Nos. ATL-17-0909-SSA; ATL-18-0264-SSA; ATL-18-0444-SSA
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 5, 2019 final decision
concerning his three equal employment opportunity (EEO) complaints alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. 	For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Administrative
Specialist (Debt), GS-0998-10, at the Agency’s Southeastern Program Service Center in
Birmingham, Alabama.
On November 13, 2017, Complainant filed Agency No. ATL-17-0909-SSA (Complaint 1) in
which he alleged that the Agency discriminated against him on the bases of race (African-
American), sex (male), age (54), and in reprisal for prior protected EEO activity by not selecting
him for a detail to the position of Debt Specialist Instructor on August 31, 2017.
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.

2020000873	2
Complainant alleged that management had posted the detail assignment on June 8, 2017 and closed
it the following day, June 9, 2017. He stated that he had been on vacation at the time and had not
returned to work until June 13, 2017, at which time he immediately replied to express his interest
in serving on the detail. 	Complainant maintained that his name should have been added to the list
of those considered for the detail. Complainant also believed that he was better qualified then either
of the selectees because he had seniority, he had mentored other employees and had served as an
instructor in the past, and that he had demonstrated leadership and communication skills.
Investigative Report One (IR1), Exhibit (Ex.) 5: pp. 4-6, ¶¶ 9-10, 15. The Module Manager (MM)
and the Section Chief (SC) averred that Selectees (1) and (2) were chosen, and that Complainant
was not considered because he did not express his interest in the detail during the announcement
period. IR1: Ex. 6, p. 2 ¶ 5; 1, Ex. 7, pp. 2-3, ¶¶ 8-9; Ex. 13; Ex. 14.
On January 26, 2018, Complainant filed Agency No. ATL-18-0264-SSA (Complaint 2) in which
he alleged that the Agency discriminated against him on the bases of sex (male), age (54), and in
reprisal for prior protected EEO activity by not selecting him for the position of Lead Debt
Specialist on November 13, 2017.
According to the Operations Manager (OM) and the Assistant Regional Commissioner (ARC), the
Human Resources Office posted the vacancy and provided the OM a list of eligible candidates.
The OM then reviewed the applications and ranked the candidates based on supervisory
recommendations, receipt of contribution awards within the previous two years, and technical
knowledge. No interviews were conducted. Complainant averred that he was the most qualified
candidate for the position by virtue of having worked independently as a Debt Specialist Mentor,
conducted training for Debt Specialists, served in a 90-day detail in the position, and volunteered
for additional assignments. IR2: Ex, 7-1, p. 3, ¶¶ 7-8, 10. The OM and the ARC responded that
the two highest-ranked candidates based on the selection criteria were Selectees (3) and (4). They
pointed out that the selectees each scored 4.5 on their evaluations while Complainant only scored
3.0, that the selectees received contribution awards within the previous two years while
Complainant did not, and that the selectees’ supervisors recommended them for the position while
Complainant’s supervisor did not. IR2: Ex, 7-2, pp. 3-4, ¶¶ 10. 16-17; Ex. 7-3, pp. 3-4, ¶ 13; Ex.
7-11, pp. 1-2; Ex. 7-12; Ex. 7-13; Ex. 7-14; Ex. 7-16, p. 1.
On May 1, 2018, Complainant filed Agency No. ATL-18-0444-SSA (Complaint 3) in which he
alleged that Agency discriminated against him on the bases of race (African-American), sex
(male), age (54), and in reprisal for prior protected EEO activity by not selecting him for the
position of Claims Specialist on February 26, 2018.2
The District Manager (DM) and the Assistant District Manager (ADM) stated that the ADM
reviewed applications referred by the Human Resources Office against selection criteria that
included length of service; field office experience; Claims Specialist, Claims Authorizer, or
2 The Agency dismissed several additional claims in each complaint for untimely EEO Counselor
contact and failure to state a claim. 	Complainant raised no challenges to the dismissal of these
claims on appeal; therefore, they will not be addressed herein.

2020000873	3
Benefits Authorizer experience; participation in development programs; field office details;
education; awards; mentoring experiences; and recommendations. They averred that no interviews
were conducted, no panels were convened, and that the ADM selected the candidates with the two
highest scores, Selectees (5) and (6). Selectee (5) had a total score of 129 points and Selectee (6)
had a score of 123 points while Complainant had a score of 71 points. 	Both Selectee (5) and
Selectee (6) were recommended by their supervisors, while Complainant was not. The selectees
were ranked first and second out of 27 applicants while Complainant was ranked 21 st out of 27.
IR3 135, 137-43, 149-52, 283-87, 289-91.
The Agency investigated the three complaints separately. At the conclusion of each investigation,
the Agency provided Complainant with a copy of the investigative reports and notice of his right
to request hearings before an EEOC Administrative Judge (AJ). Complainant timely requested a
hearing and the complaints were consolidated. Complainant subsequently withdrew his hearing
request. 	Consequently, the Agency issued a consolidated final decision on all three complaints
pursuant to 29 C.F.R. § 1614.110(b). 	The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination or reprisal as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Disparate Treatment
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, 802 (1973). 	His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with in this case, however, since the officials
involved with each nonselection had articulated legitimate and nondiscriminatory reasons for their
decisions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
With respect to Complaint (1), Agency management explained that they were first informed of the
detail opening on June 8, 2017, with a directive to provide a list of interested employees by June
13, 2017.

2020000873	4
The record shows that SC then sent an email that same day soliciting interest in serving in the
detail assignment with a deadline to respond by the next day, June 9, 2017. 	After receiving
responses, SC then submitted the list of volunteers for further consideration on June 9, 2017. SC
affirmed that Complainant did not submit the email expressing his interest in the detail until June
13, 2017, four days after the expiration of the deadline for doing so. SC noted that the policy for
detail assignments is that employees must respond by the deadline to be considered and
management cannot delay announcements or deadlines because individuals are on leave. 	As a
result, Complainant was not considered for the detail assignment.
With regard to Complaints (2) and (3), the OM, the ARC, the DM, and the ADM all averred that
while Complainant was among the candidates referred by the Human Resources Office for both
positions, the four selectees were better qualified. 	Regarding the position in Complaint (2), the
OM stated that she based her selection for the position on the applicants’ recommendations from
their supervisors, ROC awards, and experience with technical work. 	The OM noted that
Complainant’s evaluation score was 3.0 and he was not recommended by his supervisor.
Conversely, each of the selectees was recommended by their supervisors, received recognition
awards in the past two years, and received a 4.5 score on their evaluations. Further, the selectees
demonstrated the ability to perform in the position and to teach and mentor their coworkers
regarding the skills necessary to perform in the position. 	Thus, the OMC concluded that the
selectees outperformed Complainant in every metric and selected Selectee (3) and Selectee (4) for
the position.
Finally, regarding the position in Complaint (3), selection officials stated that they utilized a matrix
to rank candidates using the same criteria: length of service; field office experience; Claims
Specialist, Claims Authorizer, or Benefits experience; participation in development programs;
field 	office 	details; 	education; 	awards; 	applications; 	documented 	experience; 	and
recommendations. The ADM affirmed that the top two individuals with the highest points were
selected for the position. 	Selectee (5) scored 129 points and Selectee (6) had 123 points while
Complainant ranked 21 st of the 27 candidates. The ADM noted that both selectees were highly
recommended, while Complainant was not recommended. As result, Selectee (5) and Selectee (6)
were selected for the position.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanations put forward by the various management officials are pretexts for discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981). 	Pretext 	can 	be 	demonstrated 	by 	showing 	such 	weaknesses, 	implausibilities,
inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for
its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-
Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den.
EEOC Request No. 0520080211 (May 30, 2008).

2020000873	5
In non-selection cases, Complainant could demonstrate pretext by showing that his qualifications
for the positions at issue in these complaints were plainly superior to those of the selectees. Hung
P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). 	Complainant
should bear in mind, however, that agencies have broad discretion to choose among equally
qualified candidates as long as the selection is not based on unlawful considerations. Lashawna
L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select
candidates with fewer years of experience if they believe that such candidates are best qualified to
meet the needs of the organization. Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120172111
(Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised
upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No. 0120172112 (Nov. 29,
2018). The Commission cannot second-guess such personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for making those decisions.
Burdine, supra 450 U.S. at 259. Beyond his own assertions, Complainant has not presented any
documentary or testimonial evidence demonstrating that his qualifications for the positions at issue
in Complaints (2) and (3) were superior to those of selectees (2), (3), (4), or (5).
Other 	indicators 	of 	pretext 	include 	discriminatory 	statements 	or 	past 	personal 	treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked by
the EEO investigator why he believed that he had been discriminated against with respect to the
nonselections in the three complaints now before us, Complainant replied that Black males rarely
get hired, that the main reason was reprisal by the OM, that the selectees were female and several
were significantly younger than him, and that he had named the DM in prior EEO complaints as
well. 	IR1, Ex. 5, p. 6, ¶ 17; IR2, Ex, 7-1, pp. 3-4, ¶ 12; IR3 131-132. 	As previously noted,
however, Complainant has presented neither affidavits, declarations, or unsworn statements from
witnesses other than himself nor documents which contradict or undercut the named officials’
proffered explanations for not selecting him in any of the positions, which tend to establish the
existence of any of the indicators of pretext listed above, or which cause us to question the veracity
of any of these officials. 	We therefore agree with the Agency that the evidentiary record is
insufficient to support Complainant’s claim that management officials were motivated by unlawful
considerations of his race, sex, age, or previous EEO activity in choosing not to select him for any
of the positions at issue. Accordingly, the Commission finds that Complainant was not subjected
to discrimination or reprisal as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

2020000873	6
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. 	The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. 	The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your request for reconsideration. 	The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

2020000873	7
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
September 23, 2020
Date