Clarine L.,1 Complainant,v.Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120181210 (E.E.O.C. Aug. 8, 2019)

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

Clarine L.,1
Complainant,

v.

Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.

Appeal No. 0120181210

Hearing No. 570201500734X

Agency Nos. FDICEO-13-067 and FDICEO-14-060

DECISION

On February 22, 2018, 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 19, 2018, final order concerning her equal employment opportunity (EEO) complaint.
She alleged 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Consumer Affairs
Specialist, CG-301-13/14, at the Agency’s Deposit Insurance Section facility in Washington,
D.C..

On December 27, 2013, Complainant filed her first EEO complaint (FDICEO-13-067), alleging
that the Agency discriminated against her on the bases of race (African-American), sex (female),
color (Black), disability (unspecified), and age (54) when:

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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1. On September 18, 2013, Complainant became aware that she was not selected for
the position of Senior Consumer Affairs Specialist, CG-301-13/14, advertised
under vacancy announcement number 2013-HQD-0731; and
2. On December 2, 2013, Complainant received an annual Performance Plan and
Evaluation that underrated and undervalued her contributions to the FDIC.

On September 23, 2014, Complainant filed her second complaint (FDICEO-14-060), alleging
reprisal when her supervisor would not renew her term appointment. On July 13, 2016, the two
complaints were consolidated for adjudication.

The pertinent record reveals the following facts. On June 7, 2010, Complainant was appointed to
a two-year appointment, as a Consumer Affairs Specialist. One June 7, 2012, her appointment
was extended for an additional two years, not to exceed June 5, 2014. As a Consumer Affairs
Specialist, Complainant was responsible for assisting the Deposit Insurance Section in
responding to public ‘s inquiries. Complainant reported to the Chief, DIS (Caucasian male, no
disability, age (52) (RMO1).

Complainant had prior EEO activity, having first filed an EEO complaint on December 27, 2013.

Complaint 1 Claim 1 – Non-Selection FDICEO-13-067

On July 12, 2013, the Agency advertised a Consumer Affairs Specialist position, CG-301-13/14,
under vacancy announcement number 2013-HQD-0731. Complainant applied for the position.

On September 3, 2013, Complainant was interviewed by three panelists. All of the panelists were
Caucasian. The panel included her supervisor, two men and one woman. None had any known
disability.

All candidates, including Complainant, were asked the same five questions and were rated
against the same benchmarks. After rating each candidate, the panel engaged in post-interview
group discussions and determined the ranking. The candidate who received the most
“Outstandings” would receive the highest ranking. The panel members all agreed that another
employee (Hispanic male, no identified disability, YOB: 1/1977) had overall scores that were
higher than Complainant’s scores. The record is undisputed regarding the panelist’s impressions
of the candidates during the interview.

The panel forwarded its recommendation for selection to the Acting Associate Director, who was
the selecting official (Caucasian, female, no disability, DOB 6/1958) (RMO3).

The selecting official attested that she was aware of Complainants race and sex, but denied
knowledge of her disability or age. The selecting official selected the individual recommended
by the panel.

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Complainant believes that she was better qualified than the selectee because she had more
relevant banking education and legal experience and better writing skills due to her law degree.
She also maintains that the Agency erroneously relied on the interview panel’s subjective
ranking of the selectee, while discounting her relevant education, experience and substantive
work products.

Complaint 1 Claim 2 – Performance Evaluation FDICEO-13-067

The rating period at issue for the 2013 “PMR” ran from September 2012 through August 2013.
RMO1 served as the Rating Official and RMO2 was the Reviewing Official for Complainant’s
2013 PMR. Employees receive one of the following ratings for each of the job standards: 5-Role
Model; 4-Performance Leader; 3- Accomplished Practitioner; 2- Improvement Required; 1 –
Unacceptable. Additionally, under the PMR system, all “CG employees” are rated under four
job standards and four Behavioral Standards. On September 27, 2013, Complainant provided
RMO1 with a summary of her accomplishments for the rating period and a self-assessment.
Complainant’s self-assessment gave herself three ratings of “5” (Role Modal and one rating of
“4” (Performance Leader) that would have resulted in a summary job rating of 4.8 or “Exceeds.”
Complainant acknowledged that she did not handle as many calls as her counterparts

After reviewing Complainant’s work for the rating period, RMO1 provided Complainant with a
2013 PMR job standard rating with three ratings of “3” (Accomplished Practitioner) and one
rating of “4” (Performance Leader) resulting in an overall summary rating of 3.3 (“Appropriate).

Complainant disagreed with the rating and met with RMO1. He considered her rebuttal, but he
did not change her 2013 rating. The record also shows that out of the six Grade 12 employees,
RMO1 rated, two employees receive performance ratings of 4 and four employees, including
Complainant received overall performance rating of 3. A black female and a white male
received the higher “4” rating.

Complaint 2 – Reprisal Claim FDICEO-14-060

Complainant filed her second complaint on December 27, 2013, alleging that a less qualified
individual was selected for the Consumer Affairs position, for which Complainant had applied.
RMO1 knew of Complainant’s prior EEO activity. RMO1 requested that Complainant’s
appointment and that of her comparator (no prior EEO activity) be extended. His requests to
extend were denied.

Complainant’s third level supervisor made the decision not to extend her term. RMO3 attest that
Complainant made her aware of her EEO activity during a meeting in January of 2014. The
Director (RMO4) was Complainant’s fourth-level supervisor. He agreed with RMO3’s decision
not to extend Complainant’s term and made the final decisions.

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RMO3 averred that she made the decision not to extend Complainant’s term appointment after
considering the workload of Complainant’s unit to determine if her term should be allowed to
expire. She concluded that there was no basis to extend Complainant’s appointment.

On January 30, 2014, Complainant received an email indicating that her employment would end
at the expiration of her contract on June 6, 2014. Complainant averred that the non-renewal
showed a pattern of retaliation against her because “everything changed” (i.e. her workload and
assignments) after she filed the first complaint. Complainant believes that her work assignments
were reduced after her EEO activity.

RMO1 stated that it was Complainant’s “lack of availability, not her EEO activity, that dictated
her workload and assignments.” RMO1 stated that during Complainant’s last year at the FDIC,
Complainant took a lot of Leave Without Pay (LWOP) to take care of her parents. Consequently,
RMO1 stated that her workload and assignments were adjusted, because she could not be
assigned work when she was out of the office. Complainant did not offer any evidence to refute
RMO1’s assertion.

Complainant noted that “my [Complainant’s] job” was reposted in January of 2015.

The Agency stated that, in October of 2014, another term employee resigned before the end of
her term and it was that other employee’s position that was reposted as a term position. RMO3
also stated that there had been a slight increase in inquiries by 10%, which is what allowed her to
post the term position, after the other employee left before the end of her term. RMO3 averred
that she is “still at only three term employees.”

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 timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 23,
2016, motion for a decision without a hearing. The AJ issued a decision without a hearing on
January 8, 2018.

AJ Decision

The AJ found that the record was adequately developed and further found that Complainant had
the opportunity to engage in discovery, received a comprehensive statement of the undisputed
facts, and filed an opposition to the Agency’s motion, which the AJ considered. In finding that it
was appropriate to grant the Agency’s motion, the AJ reasoned that Complainant failed to
present substantive evidence to refute the Agency’s articulated reasons for its selection decision
or to show that the Agency’s actions were based on a discriminatory motive. The AJ noted the
Agency’s reasons for its actions. The Agency selected the individual who was deemed the best
qualified, who was recommended by the panel. Her rating reflected her supervisor’s assessment
of Complainant’s performance. The Agency stated that her appointment was not renewed, and
adjustments were made to Complainant’s workload, because Complainant was unavailable for
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extended periods. It was undisputed that Complainant had been out of the office on Leave
Without Pay to care for her parents.

Similarly, regarding her retaliation claim and her performance rating, the AJ found that
Complainant failed to present any evidence which indicated any discriminatory animus in her
2013 PMR rating. The AJ found that “Complainant’s attempt to create a genuine issue of
material fact based upon the number of narrative comments in the performance rating likewise
unavailing.” The AJ granted summary judgment in favor of the Agency.

The Agency subsequently issued a final order adopting the AJ’s findings. This 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).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
or 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
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analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

We will assume for purposes of our analysis that Complainant is a qualified individual with a
disability and that Agency management was aware of her race, color, sex, age, prior EEO
activity, and alleged medical condition, when Complainant was not selected, given a level-3
rating and was not reappointed to another term. Here, the Agency articulated legitimate reasons
for its actions. The Agency selected the individual deemed the best qualified. The rating was
based on RMO1’s assessment of Complainant’s performance and RMO3 decided there was no
basis to extend Complainant’s term appointment for a third time.

In order 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 a complainant 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. In this case, however,
Complainant has failed to establish such a dispute regarding the Agency’s stated reasons. Even
construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable
fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the entry of summary judgment was appropriate.

CONCLUSION

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 tends 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.
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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
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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

August 8, 2019_
Date