0120122820
08-06-2014
Complainant
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122820
Hearing No. 440-2011-00008X
Agency No. 200J-0797-2010100534
DECISION
Complainant timely filed an appeal from the Agency's June 1, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, and whether the AJ properly found that Complainant failed to prove that the Agency subjected her to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-11, at the Agency's National Acquisition Center (NAC) in Hines, Illinois. Complainant has worked with the Agency since 2003, when she was hired as GS-7 Management and Program Assistant. During the relevant time period, Complainant was supervised by the Assistant Director of the Operations and Analysis Branch (S1). S1 has been Complainant's supervisor since May or June 2009. Throughout this time, Complainant's second-line supervisor (S2) was the Director of the Business Resource Service. S2 promoted Complainant to GS-11 Management Assistant in April 2006 and GS-11 Management Analyst in April 2007.
On February 2009, Complainant accused a coworker (C1) of attempting to assault her and asked S2 to respond to the situation. On March 11, 2009, Complainant contacted her EEO office and alleged a hostile work environment based on the incident with C1.
On July 20, 2009, Complainant applied for a GS-11/12 Management Analyst position advertised under vacancy number 09-797-20. The Agency certified Complainant as qualified for the position at the GS-11 and GS-12 levels and referred Complainant for an interview with S1 along with five other applicants.
In October 2009, S1 interviewed Complainant and six other applicants. The five other applicants consisted of one Asian candidate, three African-American candidates, and a Caucasian candidate. S1 rated the applicants based on their interviews, applications, and supervisors' appraisals. Regarding the interview, S1 asked the applicants the same 10 questions and each were given a score of one to five for each answer. Applicants could receive up to 50 points for their interview, 10 points for their latest performance evaluation, and 25 points for their applications, for a total possible score of 80 points. Complainant received 43 points for her interview, 20 points for her application, and five points for her 2009 performance evaluation, for a total of 68 points. S1 selected four applicants with higher total scores (79 to 83 points) than Complainant for the positions. Two of the selectees are African American, one is Caucasian, and one is Asian.
On October 9, 2009, S1 rated Complainant "minimally successfully" on her performance evaluation for the period October 1, 2008, through September 30, 2009. S1's evaluation was based on S2's memorandum to S1 that recommended that Complainant receive a minimally successful rating based on S2's observations for the period October 1, 2008, to June 20, 2009. Complainant filed an EEO complaint regarding the 2000 performance evaluation, and on February 23, 2009, settled her that EEO complaint with the Agency.
In February 2010, Complainant applied for a GS-11/12 Management Analyst position under vacancy number 10-797-12. The Agency deemed Complainant qualified for the position and referred her for an interview with the Assistant Director of the Strategic National Stockpile (Assistant Director) and a Pharmacist along with seven other applicants. Each candidate was asked the same questions, and the Pharmacist and Assistant Director rated the applicants based on the interviews and their knowledge, skills, and abilities (KSA) applications. The Assistant Director and the Pharmacist gave Complainant 25 points for her interview and 26 points for her KSAs. Complainant was ranked fifth out of eight applicants. The Assistant Director selected an African-American candidate who received 35 points for her interview and 28 points for her KSAs for the position.
Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the basis of race (African-American) and in reprisal for prior protected EEO activity when:
1. On November 2, 2009, the Agency did not select her the position of Management Analyst, GS-343-11/12, in the Acquisition and Operations Branch of the Business Resource Service within NAC, under vacancy number 09-797-20; and
2. On March 23, 2010, the Agency did not select Complainant for the position of Management Analyst, GS-12, in the Office of Acquisition within NAC's Strategic National Stockpile Program, under vacancy number 10-797-12.
In an investigative statement, S1 (African-American) stated that the selectees qualified for the first position at the GS-11 level, whereas Complainant qualified at both the GS-11 and GS-12 levels. S1 stated that one of the selectees was chosen because he had three degrees and was ranked highest. S1 stated that the selectees had more relevant experience or education than Complainant. S1 further stated that Complainant's interview answers did not cite current examples of what a management analyst did with respect to spreadsheets, numbers, and figures, and purchases; instead, Complainant's answers were based more on customer service. He also stated that Complainant's responses concerned experience accrued five or ten years before the interview. S1 stated that the only reason Complainant was qualified for GS-11 and GS-12 was because she had been a GS-11 for one year, which qualified her for a GS-12 position.
The Pharmacist (Caucasian) stated that she and the Assistant Director made the selection for the second position. The Pharmacist stated that she chose the selectee for the position because the position had the new requirements of budgeting and fiscal oversight, and the selectee had "plenty" of experience with those areas. The Pharmacist stated that Complainant did not indicate that she had as much experience as the selectee in those areas. Additionally, the Pharmacist stated that she chose the selectee because she seemed more aggressive regarding accomplishing things and gave many examples of things she had done before. She stated that the selectee's interview skills were much better than other applicants, and the selectee proved herself to be the best qualified applicant. The Pharmacist stated that during her interview, the selectee revealed that she really researched the program and knew a lot of key points, whereas other applicants just touched on the relevant points. The Pharmacist stated that S2 never talked to her about the selection process for this position.
The Assistant Director (Caucasian) stated that he and the Pharmacist collectively interviewed the eight applicants for the second position, individually evaluated the candidates, and then merged the evaluations for total scores to make the selection. The Assistant Director stated that Complainant ranked fifth among the applicants. He stated that the selectee was chosen because she was already an auditor, and this position required financial knowledge. The Assistant Director further stated that he was impressed by the fact that the selectee inquired about the Agency's standard operating procedures (SOPs) and said that implementing SOPs would be one of the first things she would do in the job. The Assistant Director also stated that he was impressed by the selectee's knowledge about the structure of the way the program should function, and it was clear the selectee could come into the program and take over, which is what she has done.
The AJ's Decision
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 AJ. Complainant timely requested a hearing. The Agency moved for summary judgment in its favor, to which Complainant objected. On May 4, 2012, the AJ issued summary judgment in favor of the Agency. Specifically, the AJ found that although Complainant established a prima facie case of discrimination for claim 1, the Agency articulated legitimate, non-discriminatory reasons for its actions with respect to both claims.
The AJ's analysis focused on claim 1 because the AJ determined that this claim concerned the selection that Complainant "most aggressively attacks." Regarding claim 1, the AJ concluded that S1 gave Complainant 20 points for her interview responses but only five points for her previous year's performance evaluation. The AJ noted that the evaluation was largely based on comments from S2, who was Complainant's supervisor for nine months of the rating period. The AJ further noted that S1 rated Complainant as "fully successful" for the last three months of the evaluation period. The AJ also noted that, although Complainant alleged that S2 was upset with her because Complainant kept telling everyone about an alleged altercation with a coworker, Complainant did not produce any evidence that S2 was involved with the selection process for the two positions at issue. The AJ concluded that Complainant failed to show that the Agency's actions were motivated by discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when he issued summary judgment in favor of the Agency. Regarding claim 1, Complainant contends that one of the four selectees was not qualified for the first position because, at the time of her selection, she did not have sufficient time in-grade to qualify for a GS-11/12 position. Complainant further maintains that she was more qualified for the position than the selectees because she was qualified for both GS-11 and GS-12 positions, whereas the selectees were only qualified for the GS-11 level.
Complainant also contends that that the Agency's explanations for not selecting her are inconsistent, because in an interrogatory, the Agency stated that education was not a factor in its decision; however, S1 stated that education was a factor in the selection decision. Complainant further contends that there is evidence of retaliatory motive in this case because, in an e-mail dated December 9, 2009, a manager told S1 to remind Complainant that she was not allowed in his work area, and S1 forwarded the e-mail to Complainant with a directive to comply with the manager's wishes. The Agency requests that we affirm its final order.
STANDARD OF REVIEW
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, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (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
Decision without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a careful review of the record we find that there was no genuine issue of material fact or credibility so as to warrant a hearing; a decision without a hearing therefore was appropriate.
Disparate Treatment
In order to prevail in Complainant's disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 pretextual. 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).
For purposes of analysis and without so finding, we assume that Complainant established a prima facie case of race discrimination and reprisal. Nevertheless, we find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, the Agency stated that Complainant was not selected for the first Management Analyst position because the selectees had more relevant experience or education than Complainant. The Agency further stated that during the interview for the position, Complainant did not cite current examples of what a Management Analyst does with respect to spreadsheets, numbers, and figures, and purchases; instead, Complainant's answers were based more on her customer service experience. Additionally, the Agency stated that Complainant was not selected because she was rated minimally successful on her latest performance evaluation.
Regarding the second position, the Agency stated that the selectee was chosen because she was already an Auditor, and this position required financial knowledge. The Agency further stated that during her interview, the selectee revealed that she really researched the program and knew a lot of key points, whereas other applicants just touched on the relevant points.
In attempt to prove that the Agency's explanations are pretextual, Complainant contends that there is evidence of retaliatory motive in this case because, in an e-mail dated December 9, 2009, a manager told S1 to remind Complainant that she was not allowed in his work area, and S1 forwarded the e-mail to Complainant with a directive to comply with the manager's wishes. However, we do not find that S1's response reflects any retaliatory motive. Complainant also argues that S1's reliance on her performance evaluation was improper because the performance evaluation was retaliatory. However, Complainant has not proven that the underlying performance evaluation was based on reprisal, and the settlement of this matter does not prove the merits of Complainant's previous EEO claim.
Complainant also contends that that the Agency's explanations for not selecting her are inconsistent, because in an interrogatory, the Agency stated that education was not a factor in its decision; however, in an investigative statement, S1 stated that education was a factor in the selection decision. However, the record reveals that an Agency attorney answered the interrogatory in which it was asserted that education was not a factor in the first selection. S1 is the selecting official for the position, and as such, has first-hand, pertinent knowledge about the selection process. In contrast, the Agency attorney was not responsible for Complainant's non-selection and has not asserted that she had any first-hand knowledge of the selection process. As such, we cannot find that the inconsistencies between these statements constitute evidence of pretext.
Additionally, Complainant contends that she is more qualified for the first position because she was qualified at both the GS-11 and GS-12 levels. However, this alone does not prove that Complainant possessed superior qualifications for the position, but merely that she could potentially have been hired at both GS levels based on the amount of time she had served at the GS-11 level. We note that this position was a GS-11/12 position with a GS-12 target. The fact that some candidates only qualified at the GS-11 level does not necessarily make those candidates inferior in qualifications to those that qualified at both the GS-11 and GS-12 levels.
Further, although Complainant is a GS-11 Management Analyst and has a degree in Criminal Justice, the selectees also have impressive qualifications. For example, one selectee had Master's degrees in Health Administration and Microbiology and had served as a GS-9 Administrative Officer with the Agency since June 2006. Another selectee had a Business Administration degree and served as GS-11 Systems Analyst with the Agency. The third selectee had a Master of Business Administration degree and served as a GS-10 Management Analyst with the Agency.
Complainant contends that the fourth selectee was not qualified for a GS-11 position. The record reveals that this selectee had degrees in Accounting and Criminal Justice. The record further reveals that at the time of the selection, the selectee had been a GS-9 Management Assistant with the Department of Labor since August 2008 and had a Business Administration degree. The vacancy announcement for the first position states that an applicant was qualified for the position if she had been in a GS-9 position for at least one year. Consequently, we conclude that the evidence reflects that the selectee was qualified for the first position when the Agency made its selection in November 2009. With respect to the second position, the record reveals that the selectee was a GS-11 Auditor with the Agency since October 2006 and previously served as a GS-9 Budget Analyst.
Thus, we cannot say that there is any evidence that Complainant's qualifications were observably superior to the selectees' qualifications for these positions. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Significantly, with respect to Complainant's claim of race discrimination, we note that half of the selectees for the first position are African-American, and the only selectee for the second position is African-American. We conclude that Complainant has not provided any evidence from which it reasonably can be concluded that the Agency's non-discriminatory explanations for its actions are pretext for unlawful discrimination. Consequently, we find that the AJ properly issued summary judgment in favor of the Agency.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2014
Date
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0120122820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122820