Carroll R.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120172752 (E.E.O.C. Dec. 14, 2018)

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

Carroll R.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice,
Agency.

Appeal No. 0120172752

Hearing Nos. 570-2016-00045X
570-2016-00419X

Agency Nos. OBD-2014-00798
OBD-2015-01305

DECISION

On August 6, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s August 17, 2017 final order concerning an equal employment opportunity (EEO)
complaint claiming 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.2

BACKGROUND

During the period at issue, Complainant worked as a Civil Rights Analyst, GS-12, at the
Agency’s Civil Rights Division, Voting Rights Section, Housing and Civil Enforcement Section
in Washington D.C.

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.

2 The record reflects that Complainant filed his appeal with the Commission after receiving the
AJ’s decision dated July 10, 2017, but before the Agency issued a final order implementing the
AJ’s decision dated August 17, 2017.
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Complainant filed two formal complaints on August 8, 2014 and September 2, 2014,
respectively. In the formal complaints, Complainant claimed that the Agency discriminated
against him based on national origin (Dominican), age (over 40), and in reprisal for prior EEO
activity under when:

1. on or around May 5, 2014, he was not selected during Open Season for the position of
Equal Employment Specialist, GS-13, in the Housing and Civil Enforcement Division
or the Office of Special Counsel for Immigration Related Fair Employment Practices
or the Special Litigation Section (Agency No. OBD-2014-00798, hereinafter referred
to as “Complaint 1”); and

2. on or about June 24, 2014, he was not selected for the position of EEO Specialist
under Vacancy Announcements 14-CRD-002 (Delegated Examination Unit (DEU))
and 14-CRD-002 (Merit Promotion Plan (MPP)) (Agency No. OBD-2015-01205,
herein referred to as “Complaint 2”).

After an investigation of Complaints 1 and 2, Complainant was provided a copy of the
investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). The AJ
consolidated Complaints 1 and 2. Thereafter, the Agency filed a Motion for a Decision Without
a Hearing. On July 10, 2017, the AJ issued a decision by summary judgment in favor of the
Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

In 2009, Complainant filed a complaint with the Agency’s Office of Inspector General in which
he claimed that a manager made certain race-based comments to employees. In addition,
Complainant submitted evidence indicating that he filed an EEO complaint in November 2009
which was settled by a settlement agreement dated February 17, 2010.

In 2014, Complainant applied for a lateral transfer through the Agency’s Open Season to
positions in the Housing and Civil Enforcement Division, the Office of Special Counsel for
Immigration-Related Fair Employment Practices and the Special Litigation Section.3
Complainant and a named female employee were chosen for interviews for the Testing
Coordinator position in the Housing and Civil Enforcement but no selection was made. The
Testing Coordinator positions were then advertised to solicit applications from a wider pool of
applicants.

In Complaint 1, Complainant asserted that on or around May 5, 2014, he was not selected during
Open Season for the position of Equal Employment Specialist, GS-13, in the Housing and Civil

3 During the Agency’s “Open Season,” employees may apply for vacant positions at the same
pay level as their current positions.
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Enforcement Division or the Office of Special Counsel for Immigration Related Fair
Employment Practices or the Special Litigation Section.

The AJ noted that the Agency stated that it declined to make a selection for the position in
Housing and Civil Enforcement “because it wanted to expand the applicant pool to get a wider
range of applicants. Thus, while Complainant and another applicant were interviewed, the
Agency was not satisfied with their qualifications and continued to seek additional applicants.”

The Deputy Special Counsel (Latino, unknown age/prior protected activity) stated that he did not
interview Complainant for the Equal Employment Specialist position in the Office of Special
Counsel (OSC) due to his poor work performance in his past tenure with OSC. Specifically, the
Deputy Special Counsel stated Complainant was not interviewed “because of his poor work
performance during his previous tenure with OSC (missed deadlines and poor work product).”

Further, the Deputy Special Counsel also attested that Complainant indicated this position was
his second choice and he believed that Complainant was not as interested in returning to OSC as
he was in transferring to other Sections.

Regarding positions in the Special Litigation Section, the AJ noted that the Acting Section Chief
(British/Irish, unknown age/prior protected activity) asserted that no interviews were conducted
for non-attorney positions during the 2014 Open Season and she therefore made no selections for
the relevant period.

In Complaint 2, Complainant alleged that on or about June 24, 2014, he was not selected for the
position of EEO Specialist under Vacancy Announcements 14-CRD-002 (DEU) and 14-CRD-
002 (MPP).

In 2014, the Agency advertised the positions of Equal Employment (Testing Coordinator), GS-
11/13, in the Housing and Civil Enforcement Section under Vacancy Announcement Numbers
14-CRD-002 (DEU) and 14-CRD-002 (MPP). Agency management created two groups to carry
out the selection process: one to review the candidates’ resumes and make recommendations for
interviews, and the second to conduct interviews and make a recommendation for selection.

The Resume Review Committee was comprised of three named Testing Coordinators and a Trial
Attorney. Complainant applied for the positions of Equal Employment Specialist and Testing
Coordinator. The Review Committee initially did not make a recommendation for interviews
from the Best Qualified List because the candidates did not meet the criteria for selection. The
committee members obtained a second list from Human Resources (HR) and recommended six
candidates for interviews.

Complainant was on the second list of eight candidates. However, the committee could only
agree to recommend seven candidates from the Best Qualified List for interviews.
Consequently, Complainant was not selected for an interview, and those selected for an
interview were forwarded to the Interview Committee. The Interview Committee then made a
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recommendation for selection to the Chief, Housing and Civil Enforcement Section. The Chief
selected a named candidate (African-American, unknow age/prior protected activity) for the
subject position.

The Director of Fair Housing Testing Program (Korean, under 40 years old, unknown prior
protected activity) stated that he implemented the Resume Review Committee and Interview
Committee. The Director explained the Resume Review Committee was assigned with selecting
candidates who were best qualified for the subject position based on the job description and
posting.

The Director stated that the committee received a list of 58 candidates for the subject position
after Human Resources “provided a supplemental list of DEU candidates following a re-review
of their ’best qualified’ analysis.” The Director stated that Agency management requested that
HR re-evaluate their criteria for screening “best qualified” candidates on the DEU list after the
initial list of DEU candidates did not include any candidates who the resume review deemed
qualified for the position. The Director explained that on or about August 18, 2014, a named
Trial Attorney informed him that none of the DEU candidates met the criteria in the job
announcement, so he emailed the Chief about this matter. The Director stated that the Chief then
forwarded his email to HR and a named HR representative then reviewed the applications and
agreed to conduct a second review for DEU candidates.

Further, the Director stated that he served on the Interview Committee with four other members
of the Fair Housing Testing Program. The Director stated that following the interviews, the
committee recommended the selectee (African-American, unknown age, non-government
employee) for the subject position. The Director stated that Complainant is a licensed attorney
“who has considerable experience working in the field of housing testing.” The Director also
noted that during her interview, the selectee “demonstrated a strong understanding of fair
housing testing and the responsibilities of a test coordinator. She was able to draw on her past
experience to inform her opinions on where fair housing issues are most prevalent. She
answered all of the committee’s questions directly and thoughtfully.”

The Chief, Housing and Civil Enforcement Section (American, over 40 years old, unknown prior
protected activity) stated that during the relevant period, he was responsible for approving the
hiring of employees for the Section. The Chief explained that the Director of Fair Housing
Testing Program requested and recommended the hire. He operated under the direct supervision
of the Deputy Chief. The Deputy Chief weight in with her concurrence of the Director’s
recommendation. The Chief further stated that the Director was the selecting official and he
concurred with his selection.

Further, the Chief explained that the two-tier process, which was the Resume Review Committee
and Interview Committee, allowed the Testing Coordinators “to actively participate in the hire on
one or two committees.” The Chief acknowledged requesting that Human Resources office
review the initial certification for non-governmental candidates to determine if the assessments
of the best qualified candidates had been done properly. Specifically, the Chief stated “there
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were concerns that the Human Resources office did not correctly apply the standards for
determining the best qualified candidates on non-governmental certification(s) because
candidates on the original certifications(s) did not have prior testing experience.”

The Chief stated that the Interview Committee which was comprised of the Deputy Chief, the
Director, and three Testing Coordinators. Following the interviews, the committee
recommended the selectee for the subject position. The Chief stated that he approved the
selectee for the subject position. The Chief stated that he believed the two committees “had done
their work carefully and thoughtfully. The candidate I approved for selection had been
recommended unanimously by the Interview Committee. And the candidate had extensive
testing experience and strong references.”

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established. The Agency issued its final order adopting the AJ’s decision.

The instant appeal followed.

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, § VI.B. (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 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.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
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factor in the adverse employment action. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the non-selections.
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons
were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

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.
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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

December 14, 2018
Date