Buck H.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Apr 10, 2018

0120161667 (E.E.O.C. Apr. 10, 2018)

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

Buck H.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120161667

Agency No. OBD-2014-01144

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 March 1, 2016, final
decision concerning his 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. 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 Paralegal Specialist,
GS-0950-11, with the National Courts Section, Commercial Litigation Branch, in the Agency’s
Civil Division. During the relevant time, Complainant’s first level supervisor was Supervisory
Paralegal Specialist (Person A).

The Agency posted Vacancy Announcement CIV-14-MP-58 from July 24, 2014, through August
1, 2014 for three Lead Paralegal Specialist GS-12 positions in the National Courts Section.
Complainant applied and was one of eight candidates found qualified for the position. An
interview panel was convened consisting of Person A, the Supervisory Paralegal Specialist
(Person B), Senior Management Counsel (Person C), and the Deputy Director of the National

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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Courts Section (Person D). The interview panel reviewed the candidates’ resumes, interviewed
all qualified candidates (including Complainant), and solicited input from the attorney
supervisors in the office. The three Selectees for the position were Selectee 1 (Black, female,
34), Selectee 2 (White, female, 35) and Selectee 3 (White, female, 26). All three were Paralegals
in the National Courts Section prior to being selected for the Lead Paralegal Specialist positions.

On December 12, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and age (47)
when:

1. In June 2009, a lead attorney subjected Complainant to abusive and threatening
behavior. Complainant alleges that he informed management about the lead
attorney’s behavior, and he requested to be removed from the lead attorney’s case
and transferred to another team. Complainant maintained that both of his requests
were denied.
2. In May 2010, Complainant’s 2009-2010 performance appraisal rating (April 1,
2009 – March 31, 2010) dropped from “Excellent” to “Successful.” Complainant
believes that management’s action was in retaliation because he complained about
the lead attorney’s abusive behavior.
3. In late July 2014, Complainant applied for the position of a Lead Paralegal
Specialist. Complainant alleged that on August 11, 2014, he was informed that he
was not selected for a Lead Paralegal Specialist position. Complainant also
alleges that he had the most National Court paralegal experience.
4. Complainant alleges that one of the panel members, Person B, made it impossible
for him to get a fair interview. Complainant maintains that Person B has
repeatedly made disparaging and incorrect comments about him and his work
performance to the Deputy Director and other employees, and that her actions
were racially motivated.
5. Complainant alleges that there is a pattern in the National Courts Section of White
employees being promoted more rapidly than African-American employees.

The Agency dismissed issues (1) and (2) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. The Agency noted that when asked the reason for his untimely contact
regarding issues (1) and (2), Complainant stated that he did not report the abusive and
threatening behavior by a lead attorney to the EEO Office because he believed that by reporting
the abusive behavior to an Agency supervisor, the problem would be addressed. The Agency
noted Complainant also indicated that the reason he did not grieve the 2009 – 2010 performance
appraisal rating was because he was not knowledgeable about the EEO process and he received
poor advice from the Union. The Agency determined Complainant’s explanations did not
warrant a waiver of the time limits. The Agency noted Complainant has been employed with the
Agency for 13 years and had received training which should have made him familiar with the
EEO timelines. The Agency accepted issues (3) – (5). The Agency stated although issues (1)
and (2) would not be investigated, the information would be regarded as background material to
the extent it was relevant to the timely presented allegations.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his 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 him to discrimination as alleged.

The Agency stated assuming the record established an inference of sex, race, or age
discrimination, management officials involved in the selections articulated legitimate,
nondiscriminatory reasons for selecting the selectees over Complainant. The Selecting Official
and other panel members stated that the selectees were better candidates than Complainant and
displayed more leadership potential, did a better job answering the interview questions, and their
resumes reflected better communication and organizational skills.

The Agency noted that in an attempt to establish pretext, Complainant stated that he was a better
candidate because he had been a paralegal with the National Courts Section for much longer than
the selectees (over 12 years) and also had served as an interim Team Leader for a short period.
However, the Agency stated the mere fact that Complainant had more years of experience than
the selectees as a paralegal in the National Courts Section did not necessarily make him a better
qualified candidate.

With regard to Complainant’s race discrimination claim, the Agency noted that Selectee 1 was
also the same race as Complainant. The Agency stated the record established that the interview
panel members believed the selectees were better candidates because of their resumes and
interview performance, as well as their demonstrated initiative and leadership qualities. The
Agency found the record failed to establish that Complainant’s longer tenure in the National
Courts Section and his brief experience as a Team Leader made him clearly better qualified than
the selectees.

The Agency noted Complainant also alleged that he was unable to get a fair interview because
Person B had poisoned the panel by making unfounded negative comments about him.
Complainant said that Person B made such comments to other interview panelists and to
attorneys in the National Courts Section, including Person E. The Agency noted Complainant
said that Person B’s comments were racially motivated because he could not think of another
reason she would make such comments since she was not his direct supervisor. The Agency
noted that while Person A said Person B expressed some concerns regarding Complainant, the
record established that Person B also expressed concerns about other paralegals who were not
performing up to her expectations. The Agency stated both Person E and Person D denied
hearing Person B make negative comments about Complainant. The Agency noted that Person F
(Attorney) said Complainant’s previous supervisor also had expressed concerns about
Complainant being away from his desk. Moreover, while Person C said he heard Person B make
comments about Complainant being away from his office, her comments had no bearing on his
decision during the Lead Paralegal Specialist selections. The Agency argues that Complainant’s
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conclusory opinion that Person B made negative comments about him because of his race, and
that those comments influenced the interview panel members, does not establish race
discrimination.

Finally, the Agency stated there was no evidence that management officials in the National
Courts Section favored White employees over Black employees and promoted White employees
more rapidly. The Agency noted that Selectee 1 was selected as one of the Lead Paralegal
Specialists after having only been a paralegal in the section for approximately 18 months. The
Agency also noted that the record established that when the section restructured and hired two
Supervisory Paralegal Specialists, one of those selectees, Person A, was Black. The Agency
concluded the evidence in the record did not support Complainant’s unsubstantiated claim that
there was a pattern of racial discrimination in promotion decisions in the National Courts
Section.

On appeal, Complainant notes that the Selecting Official said that Person B stated that
Complainant was sometimes absent from his office during the workday without being on leave.
Complainant claims this is a serious allegation which was never investigated. Complainant
states his office is on the fourth floor and Person B’s office is on the twelfth floor. Complainant
notes he has a supervisor four offices down the hall from him that has never said anything about
this. Complainant notes that the Assistant Director of the National Court Section stated that the
rumor originated from a former supervisor who has not worked in the section for over seven
years. Complainant states the former supervisor made the same allegation which he states was
never substantiated about other employees, including Person A.

Complainant notes that Person D explained that Selectee 3 volunteered to manage all the
classified documents in the office. Complainant states the job at issue was a personnel
management position not a document management position. Complainant notes he volunteered
to serve as the acting team lead for the same position at issue and states it does not add up that
his service did not receive more consideration.

Complainant states Person B has made disparaging comments about him that do not reflect his
performance. Complainant claims that there is nothing written in his performance appraisals that
are remotely disparaging. Complainant notes that Person B’s statement that she cannot recall
making any specific comments about him directly contradicts what the Selecting Official said,
which was that Person B has made disparaging comments about Complainant various times over
the past couple of years.

Complainant contends his credentials are superior to the other selectees. Complainant notes that
Selectee 2 stated that she mentored new paralegals and student interns of the National Courts
Section’s internal procedures and litigation rules. Complainant states that every employee does
this for new hires. Complainant points out that he was one of the senior paralegals who helped
mentor Selectee 3 when she was new to the National Courts. Complainant also claims that
Selectee 2’s statement that she “frequently acted as a Lead Paralegal overseeing and managing a
team of paralegals and legal secretaries” is not true. Complainant notes Selectee 2 had only been
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a paralegal for less than a year and a half at that point. Complainant states that if Selectee 2 was
frequently acting as a Lead Paralegal, what was the Lead Paralegal doing. Complainant states
there are four Lead Paralegals and that if one is absent, then another Lead Paralegal is supposed
to oversee the employees of the other team. Complainant requests an investigation to see if
Selectee 2 was given an unsanctioned position as a “Lead Paralegal.” Complainant notes he
served as Acting Lead Paralegal for 11 months.

In response to Complainant’s appeal, the Agency reiterates that even if Complainant established
a prima facie case, the interview panel carried the Agency’s burden by providing legitimate,
nondiscriminatory reasons for their selections. The Agency notes Complainant mentioned his
longer tenure in the office as a reason he should have been selected as a Lead Paralegal,
however, tenure was not a criterion for the job. The Agency notes that on appeal, Complainant
argues only that the panel should have accorded more weight to his time serving as Acting Lead
Paralegal than it did to the selectees’ outstanding qualities identified by the panel members. The
Agency claims these contentions are insufficient to establish that discrimination played any role
in his non-selection.

The Agency also argues there is no evidence that Person B discriminated against Complainant.
The Agency notes the only corroborated remarks deal with Person B’s concerns about
Complainant’s performance and his absences from his work station. Moreover, the Agency
states that contrary to Complainant’s statement on appeal that Person B’s comments are not
reflected in his performance appraisals, there are indications in several appraisals that
Complainant needed to demonstrate better communications skills and show more initiative or
ownership of his work (“should continue to ensure that he keeps trial attorneys advised of the
status of assignments, and that he communicates and meets realistic time periods for completing
assigned tasks”; “[Complainant’s] challenge is to assume a leadership role and ownership of the
long-range organizational tasks associated with the support of trial teams”; and “He should,
however, strive to routinely keep attorneys apprised of case status.”

The Agency notes the comments about Complainant’s absences from his workstation were not
investigated at the time, and states there is no evidence one way or the other whether he was or
was not as his work station at any time Person B said she could not find him there. The Agency
states that even assuming these comments were made, they are not separately actionable because
Complainant’s time for complaining about them has expired; they are irrelevant to the Lead
Paralegal selection issue since Person D denied that Person B made disparaging remarks to him
about Complainant, and the Selecting Official stated he did not consider Person B’s comments as
part of the selection processes; and the comments are not demonstrably discriminatory. The
Agency contends Complainant’s assumption that Person B made these comments with a
discriminatory animus is pure speculation. The Agency notes Complainant acknowledged that
Person B was not hostile to him during the interview, and he concluded that he did not know
whether Person B had a problem with men or people over 40. The Agency notes that Person A
also had concerns that Complainant needed to “step up” and told him so “every chance I got.”
The Agency also notes that Person B raised performance concerns about other members of the
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paralegal staff - consistent with her duty as Supervisory Paralegal Specialist and, before that,
Lead Paralegal.

The Agency further contends that there is no evidentiary support that National Courts Section
has a pattern of promoting White employees faster than Black employees.

ANALYSIS AND FINDINGS

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”).

At the outset, we affirm the Agency’s decision to dismiss issues (1) and (2) for untimely EEO
Counselor contact. The incident in issue (1) occurred in 2009 and the performance appraisal in
issue (2) was issued in 2010; however, Complainant did not initiate EEO Counselor contact until
September 2, 2014. Complainant appears to not be challenging the dismissal of these claims, but
even if he is, we find Complainant failed to present persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.

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 (1973). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

In the present case, the Agency articulated a legitimate, nondiscriminatory reason for its actions,
the interview panel unanimously determined that the selectees were stronger candidates than
Complainant. The Selecting Official stated that the selectees demonstrated greater aptitude for
paralegal work than Complainant, their resumes reflected a better understanding of the section’s
work and better communications and organizational skills, and that they provided better
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examples of their work and better explanations of how they would make good supervisors during
their interviews. The Selecting Official also stated that the selectees received better
recommendations. The other panel members stated that the selectees demonstrated better
leadership potential and stronger paralegal skills.

Complainant notes that he worked longer than the selectees in the National Courts Section and
had also served as an interim Team Leader. Although Complainant worked in the National
Courts Section longer than any of the three selectees, we note that greater years of experience do
not necessarily make an individual more qualified for a particular position.

Person D explained the panel was looking for demonstrated leadership ability, strong
interpersonal skills, the ability to satisfy the needs of many different attorneys in a high pressure
environment, technical mastery of the automated systems used for litigation support, and a strong
work ethic. Person D stated that as far as work ethic, the panel considered the general reputation
of the applicants and whether the applicant was someone who went the extra mile or would just
do the minimum. Person D noted that although Selectee 1 was a newer employee, she quickly
immersed herself in the office operations and was perceived by people on her floor as a “go-to
person” or someone who you could go to when you had a problem and she could resolve it.
Person D stated that Selectee 2 had developed a good reputation among attorneys as somebody
that could really be trusted. In contrast, Person D noted Complainant was not the person
attorneys would go to if they had an immediate crisis. Person D also noted that Selectee 3 was
given an additional assignment to work on classified information and she volunteered to be the
person to assume responsibility in the office for the management of that information. He stated
that Selectee 3 did such a great job that she was asked by the Civil Division to serve as the
security manager for the whole building. Person D stated Selectee 3 made this happen by herself
and that this spoke to the type of drive and initiative they were seeking. In addition, Person D
stated that part of the leadership requirement is the ability to take on responsibility for an
assignment, to own it, and make it happen and he stated all three of the selectees are people he
would trust over Complainant.

Complainant claims that Selectee 2’s statement on her resume that she “frequently acted as a
Lead Paralegal overseeing and managing a team of paralegals and legal secretaries” is not true.
However, we note the Agency did not advance this as one of the reasons for choosing Selectee 2
over Complainant. Moreover, Complainant failed to show that his qualifications were plainly
superior to those of any of the selectees.

Complainant also claimed that he was unable to get a fair interview because Person B repeatedly
made disparaging remarks about him. Complainant said that Person B made such comments to
other interview panelists and to attorneys in the National Courts Section, including Person E.
Complainant said that he believed Person B’s comments were related to Complainant’s race
because he did not know what other reason it could be. Complainant also stated that he did not
have direct evidence that it was based on race, sex, or age but said that there does not appear to
be any other reason.

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Person B stated that if she made any such remarks it would have been done in supervisory
meetings. She explained during these meetings supervisors got together and discussed the
performance of all paralegals to determine how things were going and whether the workload was
being covered. Person B stated that they especially discussed problems in those meetings.
Person B stated she did not see Complainant as one of the best paralegals and she did not
consider him as extremely productive.

Person A stated that Person B expressed concern at times when Complainant had not done work
up to the level she expected from him and Person B would say that it needed to be handled.
Person A described Person B as passionate about the work and stated that Person B also
expressed concern with other staff members, in addition to Complainant. Person A noted that
Person B worked with Complainant on several projects and thus had direct knowledge of his
work ethics, work habits, and his work performance. Person A acknowledged that Person B was
not Complainant’s supervisor but stated that as a Team Lead, she had authority to engage any
member of the staff and that she did this from time to time. Person A stated that Complainant
had a fair interview. Both Person E and Person D denied hearing Person B make negative
comments about Complainant. Person F noted that Complainant’s previous supervisor also had
expressed concern about Complainant being away from the office. Moreover, the Selecting
Official said he heard Person B make comments about being away from the office, but he stated
those comments had no bearing on his decision during the selections at issue.

We find the evidence reveals that Person B did make the comments alleged about Complainant’s
performance and her concern that Complainant was away from his office during working hours.
However, we find Complainant failed to show that these were anything other than regular work
related concerns. We note that Complainant’s previous supervisor also raised concerns about
Complainant being away from his desk. In addition, we note that Person A stated that Person B
also expressed concern with other staff members, not just Complainant. Upon review, we find
Complainant failed to show that the comments resulted in an unfair selection process. Person B
stated that such comments would have been made during supervisory staff meetings when
supervisors expressed performance concerns. Person D denied hearing any disparaging remarks
about Complainant. Moreover, the Selecting Official stated that he did not consider Person B’s
comments during the selection process. Other than Complainant’s bare assertion, there is no
evidence that the comments were based on discriminatory animus.

Finally, we find no evidence that management officials in the National Courts Section favored
White employees over Black employees and promoted White employees more rapidly. As noted
above, Selectee 1 (Black), who had only been serving as a paralegal in the section for
approximately 18 months, was selected as one of the Lead Paralegal Specialist positions at issue.
The record does not support Complainant’s bare assertion that there was a pattern of racial
discrimination in promotion decisions at the National Courts Section.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.
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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.
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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

April 10, 2018
Date