Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0220180006 (E.E.O.C. Nov. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Aurore C.,1
Grievant,

v.

Andrew Wheeler,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0220180006

Agency No. OAR5334

DECISION

On July 25, 2018, Grievant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a June 29, 2018 decision of the Federal Labor
Relations Authority (FLRA) dismissing her grievance alleging unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Grievant worked as an Attorney-Advisor, GS-
0905-14, at the Agency’s Office of Regional Counsel (ORC), Region 5, facility in Chicago,
Illinois.

On or about June 9, 2016, the Agency announced vacancies for two GS-15 level Senior Counsel
positions. Each position was specialized, with one being Senior Counsel for Clean Water Act
Enforcement and Counseling (Water) and the other being Senior Counsel for Clean Air Act
Enforcement and Counseling (Air). Grievant applied for both positions but, on or about
September 27, 2016, was not selected for either promotional opportunity.

1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when
the decision is published to non-parties and the Commission’s website.
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In response, the American Federation of Government Employees Local No. 794 (the Union)
filed a grievance on Grievant’s behalf, pursuant to the Master Collective Bargaining Agreement
(the Agreement), alleging that, on September 27, 2016, the Agency failed to recommend
Grievant for either of the Senior Counsel positions at issue and, in so doing, violated the
Agreement, the Merit System Principles, Title VII, the Privacy Act, EPA Orders 3120.1 and
4711, and the Merit Promotion Program; engaged in Prohibited Personnel Practices; and
committed Unfair Labor Practices.2

The Union alleged that the Agency discriminated against Grievant due to her race (Asian), color
(brown), national origin (India and Afghanistan), and non-disqualifying disability (history of
cancer) when it did not select her for either of the Senior Counsel positions. It also alleged the
promotion process itself was discriminatory and alleged the Agency subjected Complainant to
ongoing harassment and retaliation, culminating in its failure to select her for either of the
positions at issue.

The Agency denied the grievance at Steps 1 and 2 and the Union invoked arbitration.

From June 26 to 28, 2017, an Arbitrator of the Federal Mediation and Conciliatory Service (the
Arbitrator) held a hearing regarding Grievant’s non-selections. The Arbitrator issued an Opinion
and Award on November 17, 2017, finding the Union did not satisfy its burden of proving by a
preponderance of the evidence that the Agency violated any provision of the Agreement. The
Arbitrator determined that the Union raised a Title VII disparate treatment claim in alleging the
Agency did not select Grievant for one of the GS-15 positions on the bases of race, color, and/or
national origin, but there was no causal connection between Grievant’s non-selection and
impermissible factors such as her race, color, or national origin.3 The Arbitrator also found that
the Union stated a prima facie case of retaliation and retaliatory harassment, but that similar
causation problems applied.

The Arbitrator’s Opinion includes the Agency’s explanation of its selection process. The Agency
explained that, a week following the vacancy announcements, there was an all-hands meeting to
explain how the competitive selection process would proceed and the information that would be
considered in making the selections.

The Agency’s Regional Counsel testified that the selection decisions for the GS-15 positions at
issue were based on the statements of interest, resumes and interviews of each applicant.

2Although the grievance does not specifically allege a violation of the Rehabilitation Act,
Grievant’s allegations include discrimination based on disability.

3 The Arbitrator found that the Union failed to raise a viable disability claim because the only
evidence of disability was Grievant’s cancer surgery in 2012 and a hospitalization stay in 2016.
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He indicated the application was the most important because that was where management
expected applicants to present a full statement about their work, demonstrate the level and
complexity of the cases they worked on, and set forth their best arguments for why they had the
knowledge, skills, and experience required for the position.

A Confidential Memorandum, dated September-October 2016, provides the rationale for the
Agency’s selection decisions, including summaries of the information in each applicant’s written
submission and assessed the strength of the interview. The hiring panel’s assessments were based
on the following six criteria: (1) complexity and difficulty of the applicant’s cases or matters; (2)
the extremely high level of originality and creativity needed to bring case and matters to
resolution; (3) the nature of the specific contribution to the team’s success in achieving a result;
(4) the areas of national expertise related to the position; (5) the applicant’s skill in representing
the Region/Agency; and (6) the applicant’s expertise in mentoring and training others. The panel
believed that the selectees each demonstrated a high level of performance and ability in each of
the six critical areas of consideration and their applications addressed all the criteria, with each
showing she had the background, achievements, and expertise for the position.

The Agency explained that Grievant was not selected because she had not specifically
demonstrated that she had the same high level of performance and ability, particularly in terms of
the following three areas: the level of complexity/difficulty of her work, the level of originality
and creativity of her work, and her skill representing the Agency in her legal counseling work.
The Agency further explained that, despite a strong interview and ability to demonstrate a high
level of performance in the other three critical areas, the panel believed that the Selectee for the
Air position was a stronger candidate and the Selectee for the Water position had extensive
experience and expertise in Water enforcement and counseling and was, therefore, the stronger
choice for that position.

The Arbitrator noted in the Opinion that, for such a competitive process among highly-qualified
candidates, the quality and breadth of the written application was of major importance and not
only was Grievant’s application less detailed and comprehensive in terms of addressing the job-
related criteria, but on a purely objective basis, she did not have the same level of enforcement or
counseling experience as the selectees. The Selectee for the Water position is a recognized expert
and had specific Water enforcement and counseling experience and the Selectee for the Air
position is a recognized expert in eight areas of the Clean Air Act. Grievant, by contrast, is a
recognized expert in administrative litigation and FIFRA and a recognized expert in one area of
Air cases. While Grievant was well-qualified for the GS-15 positions, she was not the best
qualified for either of these specialized positions on the basis of the selection criteria. Thus, the
Arbitrator concluded that the Union did not prove that the Agency’s selection decisions were
based at all, or in part, on race, color, or national origin.

Regarding the Union’s allegation of disparate impact, the Arbitrator found that, with only two
competitive selections in eight years involving different selecting officials and anecdotal
evidence, the Union failed to meet the threshold requirement of statistical evidence to show that
the selection process had a statistically significant adverse effect.
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In response, the Union filed an exception to the Arbitrator’s decision with FLRA, asserting that
the decision was contrary to the law on unlawful discrimination. The Union argued that the
Arbitrator failed to: (1) comply with Supreme Court law to determine whether the Agency
violated Title VII, due to unfair intentional employment discrimination against Grievant; (2)
comply with the Supreme Court law to determine whether the Agency violated Title VII due to
unfair disparate impact employment discrimination; and (3) apply the correct legal standard to
determine whether the Agency violated Title VII by retaliating against Grievant due to her
protected activity.4

In a decision dated June 29, 2018, the FLRA considered whether the Arbitrator properly applied
federal law in determining that the Agency did not discriminate against Grievant when it did not
select her for either of the positions at issue. In so doing, the FLRA noted that, as to the
Agency’s articulated reasons for its selection, the applicants were “highly-experienced,” and the
Grievant did not demonstrate that she had the same high level of performance and ability
compared to the selectees in three critical areas. The FLRA concluded that the Union failed to
satisfy its burden to prove by a preponderance of the evidence that the Agency’s stated reasons
were merely pretext for discrimination.5

With respect to the Union’s allegations of disparate impact employment discrimination, the
FLRA found that the Union failed to establish a prima facie case. The FLRA agreed with the
Arbitrator that the Union’s statistical evidence needed to show the Agency’s selection process
had a statistically significant adverse effect on a protected group, but the Union only referred to
two competitive selections in eight years involving different selecting officials. The FLRA stated
that, while the Union provided more detailed, historical statistical information on the Agency’s
racial composition, it failed to show how this information supports its claim that the Agency’s
competitive-selection process results in a significantly discriminatory pattern.

With respect to the Union’s allegation that the Agency acted in retaliation, the FLRA agreed with
the Arbitrator’s finding that the record did not establish a causal connection between Grievant’s
union activities and her non-selection.

On July 25, 2018, Grievant submitted the instant appeal of the FLRA decision to the
Commission.

4 The Union also argued that the Arbitrator failed to apply the correct legal standard when ruling
on claims relating to the Agreement, but these issues are not related to EEO regulations.

5 With respect to Grievant’s disability discrimination claim, the FLRA found that the Union did
not sufficiently support its claim that Grievant’s medical condition is a qualifying disability that
substantially limits a major life activity or was related to her non-selection.

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CONTENTIONS ON APPEAL

On appeal, Grievant argues that the FLRA erred in concluding that, because the Arbitrator
correctly identified the applicable legal standard for disparate treatment, she applied the standard
correctly. She asserts that the Agency’s reason for selecting two Caucasian candidates was that
they were “a better fit,” without offering further evidence to support this conclusion. Grievant
asserts that she had far superior qualifications and that the Agency’s reason was a pretext for
discrimination, arguing that there is sufficient evidentiary support for her claims.

Grievant argues that the FLRA erred in concluding that the Arbitrator applied the correct legal
standard for disparate impact employment discrimination. She argues that the Agency’s practice
of promoting attorneys to non-supervisory GS-15 positions over the several decades has had a
disparate impact on minorities; the record shows that over several decades, “most attorneys
promoted to non-supervisory GS-15 positions were Caucasian and all 35 of them were white;”
and disparate impact focuses on the outcomes of the promotion practice despite the intent of the
employer. She asserts that, to meet her prima facie case for disparate impact, she is required to
show that the selection process of the last several decades had a disparate impact on minorities
and the record supports her claim.

Grievant argues that the FLRA erred in concluding that the Arbitrator found that Grievant did
not establish her prima facie case for retaliation, as the Arbitrator determined that she had, only
to change course at the end of her decision.

Grievant notes a recent Commission decision finding the same selecting official and the branch
chief involved in the instant case to be “guilty” of Title VII violations in another matter
involving one of Grievant’s colleagues. She asserts that she believes the outcome of that case is
relevant because it speaks to the credibility and pattern and practice of the Agency’s
management.

The Agency has not submitted a brief or statement in response to the appeal.

ANALYSIS AND FINDINGS

The Commission has jurisdiction over appeals from grievance decisions in limited
circumstances. EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to
the Commission from a final decision of the agency, an arbitrator, or the Federal Labor Relations
Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised, but requires the grievant to
proceed on the discrimination claims under either the grievance process or the EEO process, but
not both. In these circumstances, the Commission will only review that portion of the decision
which pertains to the grievant's employment discrimination claim, as it does not have jurisdiction
over any alleged violations of a collective bargaining agreement. See 29 C.F.R. § 1614.301(a).
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Here, Grievant alleged, at least in part, that the Agency violated the terms of the collective
bargaining agreement when she was subjected to unlawful discrimination. Accordingly, the
Commission properly has jurisdiction over Grievant's appeal.

Grievant has alleged that the Agency treated her disparately in not selecting her for two Senior
Counsel positions. A claim of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a grievant to
prevail, she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of
Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the
grievant bears the ultimate responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502 (1993).

Even if we assume that Grievant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. As discussed above, the Agency explained that, although Grievant was well-qualified
for the GS-15 positions, she was not the best qualified for either of these specialized positions
based on the selection criteria. Although Grievant has alleged discrimination and retaliation, she
has not established by a preponderance of the evidence, that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or retaliation or
motivated by some unlawful discriminatory animus with respect to these claims.

Grievant also argued that the Agency’s selection process had a disparate impact on non-white
candidates. In a disparate impact case, the burden rests on the grievant to show that a challenged
policy or practice, although facially neutral, has significant discriminatory impact on her
protected group. Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971); Connecticut v. Teal,
457 U.S. 440, 446 (1982); Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 987 (1988). To
establish a prima facie case of disparate impact, grievant must: (1) identify the specific practice
or policies being challenged; (2) show statistically significant disparities; and (3) show a nexus
between (1) and (2). Watson, 487 U.S. at 994; Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
656-58 (1989); D'Leo v. Department of the Navy, EEOC Petition No. 03920085 (November 20,
1992).

In this case, Grievant has not established a prima facie case of disparate impact under traditional
disparate-impact analysis. While Grievant identifies the selection process for GS-15 level
attorneys as the practice or policy at issue, she has failed to meet her burden to show a
significantly discriminatory pattern. As noted above, the Union referred to only two competitive
selections in eight years. We find this falls short of the evidentiary burden necessary to establish
that the selection process has a discriminatory impact on candidates on the basis of race, color, or
national origin as alleged.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the FLRA decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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.
Grievant’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).
GRIEVANT’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.
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“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.
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 Grievant’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

November 5, 2019
Date