0120114244
04-23-2014
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
,
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120114244
Hearing No. 570-2009-00386X
Agency No. 085400188
DECISION
On September 15, 2011, Complainant filed an appeal from the Agency�s final order concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The Commission deems this appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the Agency�s final order.
BACKGROUND
Prior to the time of events giving rise to this complaint, Complainant worked as a Supervisory
Management and Program Analyst, serving as the Director of the Executive Secretariat, which
was part of the Administrative Management and Executive Secretariat section of the Office of
the Chief Administrative Officer for the National Oceanic & Atmospheric Administration. Due
to a reorganization in January 2008, the Executive Secretariat function was moved from the
Office of the Chief Administrative Officer to the Office of the Undersecretary and into
something called the Office of Decision Coordination and Executive Secretariat. This
reorganization demoted Complainant from a Supervisory Management and Program Analyst
position to a Management and Program Analyst position.
Had Complainant�s supervisor not retired coincident to the reorganization, she would have
presumably become the Director of the newly formed Office of Decision Coordination and
Executive Secretariat. Her retirement created a Director�s position vacancy for which
Complainant applied in early 2008. Of the sixteen candidates, three were referred for
interviews; Complainant and the Selectee, who were both then employed in the Office of
Decision Coordination and Executive Secretariat, as well as an applicant from the Department
of Defense.
Interviews were conducted by a panel consisting of the Selecting Official (SO), who was the
Deputy Chief of Staff in the Office of the Undersecretary, a supervisory Management Analyst
in the Office of the Undersecretary and her subordinate, a Human Resources liaison. The
panel unanimously chose the Selectee because "she answered key interview questions in a
superior manner."
On June 3, 2008, Complainant contacted an EEO Counselor and filed a formal EEO complaint
alleging that the Agency discriminated against her on the bases of age (62) when she was not
selected for the Director�s position. In addition, Complainant alleged she was subjected to
retaliatory harassment when:
1. she was demoted but was not provided a new management plan, job description,
responsibilities, or informed if she would have to compete for the intended created
position;
2. she was given little work to do;
3. her supervisor refused to correct a mistake in her personnel file showing her as a
Management Analyst rather than Supervisory Management Analyst, a mistake that
could adversely affect her promotion opportunities and retirement income;
4. she was issued a Letter of Counseling dated July 14, 2008, falsely accusing her of
performance and conduct problems;
5. she received a performance score, salary increase, and bonus for FY 2008 which
was much lower than the previous year;
6. she was not provided with a position description and her job duties were unclear
based on her FY 2009 performance plan; and
7. her supervisor called her into a meeting and said "I am being required to write an
affidavit because of the accusations in your complaint."
At the conclusion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge (AJ). The parties conducted
extensive discovery. The AJ notified the parties of her intent to grant summary judgment in the
Agency�s favor and ordered them to submit responsive briefs. Soon after the simultaneous
submission of the briefs, the AJ issued a decision finding no discrimination.
In her decision, the AJ found that Complainant, who was approximately 24 years older than the
Selectee, established a prima facie case of age discrimination. However, she found that all the
panel members agreed that Complainant was the least qualified candidate for the position, due
mainly to her poor performance at her interview. Specifically, the AJ found:
SO attested that the Selectee demonstrated at the interview that she had a wider
depth and breadth of the management skills that would serve her well as the
Office Director. SO explained that the Selectee elaborated more than
Complainant on her personal accomplishments and had better examples on how
she would manage. Moreover, SO stated that all three candidates were asked to
bring a copy of their Operation Manual, which each had the responsibility of
developing, and Complainant�s was in poor condition and outdated. SO
described the Selectee's Operation Manual as well organized, well written and
up to date. He also indicated that Complainant's Operation Manual was starkly
weaker than Selectee's and in honesty, greatly hurt her chance for selection.
Specifically, Complainant's Operation Manual had not been updated in the last
four years; was poorly written; disorganized; and approximately 80%-90% of
the management personnel listed in the manual were no longer part of the
organization ... SO stated that the "poor quality of the manual indicated to me
that she lacked attention to detail and did not possess the skills [he] was looking
for in a Director." According to SO, Complainant "should have been updating
the manual on a yearly basis, if not semiannually or quarterly."
AJ�s Decision at 11. The AJ concluded that Complainant failed to show that her qualifications
for the Director�s job were plainly superior to those of the Selectee or that the Selectee did not
possess the skills and experience required for the position. The AJ further found that
management was unaware of Complainant�s prior protected activity and that there was an
insufficient link between the incidents of alleged harassment and the protected activity. The
Agency�s final action implemented the AJ�s decision.
ANALYSIS AND FINDINGS
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). 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. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). 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.
In response to the AJ�s notice of intent to grant summary judgment, Complainant filed a
response in which she alleged that both the Selectee and the outside applicant were given
advance notice of the requirement that they bring an �Operation Manual� to the interview. In
fact, the Selectee allegedly complained to Complainant that SO had been on �her case� to get
the Operation Manual updated. The outside applicant brought one, but much of its material
could not be shared due to security issues. Complainant did not bring an Operation Manual to
the interview because she was not told to do so and because her former supervisor had not
required the Office of the Executive Secretariat to have one. During Complainant�s interview,
SO produced a book of �Procedures� which he had procured from Complainant�s staff the day
before. SO described this book as disorganized and outdated and evidence of Complainant�s
failure as a leader.
We find that during the investigation and in discovery, SO gave conflicting testimony regarding
various aspects of the Operation Manual, including whether Complainant brought any such
document to the interview. Given how much emphasis was allegedly placed on the quality of
the Operation Manual, we find that the AJ erred in failing to see that facts surrounding the
document were both material and in genuine dispute. The fact alone that Complainant may
have not been given advance notice to bring the document with her while the other candidates
were given notice suggests that there is truth to Complainant�s claim that she was set up to fail.
The fact that SO may have deliberately used an outdated set of procedures in an effort to show
that Complainant was not �current� also underscores this claim. In addition, the fact that SO
claimed only the Selectee�s Operation Manual was of good quality is questionable given that
classified information and security issues may have impacted his ability to review the document
brought by the outside candidate. Finally, we find scant evidence in the record explaining why
the Operation Manual was worthy of such deference, given Complainant�s testimony that for
the many years she worked under her former Director in the Office of the Executive
Secretariat, no such document was referred to or needed.
Further, given the leadership nature of the position at issue, we find it peculiar how little
emphasis was placed on supervisory experience. Having reviewed this record, no reasonable
fact finder could find that the Selectee�s supervisory experience was anything but �negligible,�
as it occurred during a three-month developmental detail, specifically awarded to the Selectee
by SO so that the Selectee could have growth opportunities. In addition, the detail was to
Complainant�s former position, and Complainant alleges that for the period of time the Selectee
was there, it was Complainant who, acting for her former supervisor, supervised the staff.
Complainant argues that the Selectee falsified her application to the extent she claimed to have
had any supervisory experience at all and that SO was well aware that the Selectee had never
supervised. Finally, there is evidence that the Selectee did not answer the questions concerning
her supervisory skills in a manner that could be described as �superior,� and such questions
were significant enough to have been posed to the candidates.
We find multiple material facts surrounding this selection to be in genuine dispute, as well as
credibility issues. On remand, the AJ may very well conclude that Complainant was not
realistically competitive for this position, but given the highly subjective nature of the
determination as to who was best qualified and the overwhelming evidence of pre-selection, it is
a conclusion that should only be reached after a hearing. We conclude that the AJ erred in
granting summary judgment in the Agency�s favor.
CONCLUSION
Therefore, after a careful review of the record, the Commission REVERSES the Agency's
final order and REMANDS the matter to the Agency in accordance with this decision and the
Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the
Commission�s Washington Field Office within fifteen (15) calendar days of the date this decision
becomes final. The Agency shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint
in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION�S DECISION (K0610)
Compliance with the Commission�s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency�s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission�s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission�s order prior to or following an administrative petition
for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the Complainant has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled �Right to File a Civil Action.� 29 C.F.R.
�� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
� 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the
Agency, or filed your appeal with the Commission. 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. 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
April 23, 2014
__________________
Date
In her decision, the AJ denied Complainant�s �Motion for Sanctions for Failure to Provide
Discovery on the Reorganization for Almost Two Years� due to its untimely submission.
Likewise, she denied Complainant�s �Motion to Amend to Add an Additional Basis of
Discrimination� for being submitted long after discovery was closed and after the parties had
received notice of the AJ�s intent to grant summary judgment. We find no abuse of discretion
and decline to disturb these rulings.
2
0120114244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013