0120170980
07-25-2018
Beverlee C.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beverlee C.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120170980
Hearing No. 531-2016-00044X
Agency No. 54-2015-00083
DECISION
On January 30, 2017, 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 January 4, 2017, final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether Complainant was discriminated against based on race (African-American) or reprisal (prior EEO activity) when she was not selected for the position of IT Specialist (Shift Lead), GS-2210-12.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a IT specialist GS-2210-11 at the Agency's Telecommunication Operations Center facility in Silver Spring, Maryland. On February 4, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal (prior EEO activity) under Title VII of the Civil Rights Act of 1964 when she was not selected for the position of IT Specialist (Shift Lead), GS-2210-12.
On September 15, 2014, the Agency issued Vacancy Announcement No. PH-JL-14-1205802 (MP) for an IT Specialist (Shift Lead) position. The announcement closed on September 29, 2014. The Supervisor overseeing the selection stated that the requirements for the positon were "based on technical skills and leadership qualities."
The record indicated that the position had been vacant for 18 - 24 months. During that time, the Agency gave qualified staff employees, who expressed an interest in the position, 120-day rotational detail assignments, which provided on-the-job training and a temporary promotion while performing the duties of the position. Two of the eligible candidates, including the ultimate Selectee, participated in and completed the rotational assignments. Complainant participated in one training session, but did not complete the training nor did she serve in a rotational detail assignment.
A certificate of eligible applicants was issued on October 9, 2014. Four candidates were chosen for interviews, including Complainant. The interview panel consisted of the Supervisor and two IT Specialists. The Selectee received an interview score of 217 out of 270 points. Complainant received a score of 171 out of 270 points, one of the lowest scores in the group. The panel stated that Complainant failed to answer one of the interview questions altogether, ran low on time during the interview due to "overlong answers" on some questions, and provided "superficial" answers to some of the questions. She also was seen by the panelists, including her Supervisor, as being overly argumentative when working with others. They also collectively stated that Complainant's failure to serve temporarily in the 120-day rotational detail assignments negatively impacted her candidacy.
Complainant stated that the actions or policies within her Department, as well as the National Weather Service, are discriminatory because from October 2009 to present, there has not been one woman of color that has been hired for an upper level management position. Complainant stated that management continues to "fill all its vacancies with white men and now a white woman has been selected for the most current vacancy announcement within that office, again no person of color was considered or selected."
At the conclusion of 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). Complainant requested a hearing. The Agency filed a motion for a decision without a hearing. The AJ, over Complainant's objections, granted the Agency's motion and, pursuant to a telephonic bench decision, issued a decision without a hearing. The AJ analyzed Complainant's complaint under a disparate treatment framework and found that she did not prove that the Agency discriminated against her as alleged. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant, and that Complainant failed to demonstrate that those reasons were pretext for discrimination. The Agency subsequently issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
Complainant provided no new contentions on appeal. The Agency submitted a brief reiterating its contention that discrimination had not been proven.
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
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VLB. (as revised, August 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
Disparate Treatment and Reprisal
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Complainant asserts that she was subjected to disparate treatment based on her race and prior EEO activity. Assuming, arguendo, that she established a prima facie case of discrimination based on race and reprisal, we find that the Agency has provided legitimate, non-discriminatory reasons for its selection of the Selectee and its non-selection of Complainant. The Selectee received an interview score of 217 out of 270 points, and participated in the rotational detail assignments. Complainant, however, received a score of 171 out of 270 points, one of the lowest scores in the group. She also did not participate in the rotational detail assignments. The panel stated that Complainant failed to answer one of the interview questions altogether, ran low on time during the interview due to "overlong answers" on some questions, and provided "superficial" answers to some of the interview questions. She also was seen by the panelists as being overly argumentative when working with others.
Finding that the Agency provided legitimate, nondiscriminatory reasons for its action, we turn to Complainant to establish that the Agency's reasons for its actions were pretext for discrimination. Complainant stated that the actions or policies within the National Weather Service are discriminatory because from October 2009 to the present, there has not been one woman of color that has been hired on the sixth floor of National Weather Service. Complainant says that the Agency fill(s) all its vacancies with white men and now a white woman, and that no person of color was considered or selected.
We find that Complainant's does not address her deficiencies as noted by the Agency. She asserts her observations, but did not submit proof to support these assertions. Moreover, she has not established that she was better qualified for the position than the Selectee. Additionally, we note that two out of the three panelists were unaware of Complainant's prior EEO activity.
CONCLUSION
Upon careful review of the AJ's decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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.
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
_____7/25/18_____________
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.
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