Cornell S.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Mar 27, 2018

0120160444 (E.E.O.C. Mar. 27, 2018)

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

Cornell S.,1
Complainant,

v.

Betsy DeVos,
Secretary,
Department of Education,
Agency.

Appeal No. 0120160444

Hearing No. 570-2012-00292X

Agency No. ED-2011-OESE-0074

DECISION

On November 19, 2015, 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
October 23, 2015, final order 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education
Program Specialist, GS-1720-12, with the Department of Education’s (DOE) Office of
Elementary and Secondary Education (OESE), Student Achievement State Accountability
(SASA) programs, Title III State Formula grants group (Title III), located in Washington, D.C.
On June 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated

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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against him on the bases of race (Hispanic)2, national origin (Puerto Rico), sex (male), age (41),
and reprisal (prior grievance filed under collective bargaining agreement) when:

(1) on March 16, 2011, he was not selected for the Education Program Specialist
position, GS-1720-13 (EPS13), under vacancy announcement OESE-2011-0013; and

(2) he was subjected to a hostile work environment as evidenced by the following events:

(a) on August 3, 2011, his first-line supervisor (S1) (female, Indian, age 45)
rearranged and published the SASA Title III monitoring schedule and removed
him from being the monitoring lead of two of the eight states originally assigned
to him;

(b) on August 10, 2011, he learned that S1 asked at least three employees their
preferences for state assignments and did not ask him, resulting in reassignment
of four of his states;

(c) on August 30, 2011, S1 allowed a female co-worker that is currently the lead
to a state to coordinate her own monitoring review for a state (Oklahoma) that
will eventually be assigned to him. On the other hand, S1 assigned some of his
duties to a female co-worker (C2) (female, Caucasian, age 33) when S1 tasked her
to coordinate a monitoring review for a site visit to a state (Wyoming) in which he
is currently the lead; and

(d) on August 11, 2011, and as recently as September 8, 2011, he learned that S1
is talking to co-workers about him to make him look incompetent and to exclude
him from tasks and projects, i.e., technical assistance visits.

After 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ held a hearing on January 8, 2015 and
January 12, 2015. The AJ’s decision was issued on August 31, 2015. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

FACTUAL BACKGROUND

In accordance with the AJ’s decision, the facts established by a preponderance of the evidence
are as follows: On or about January 25, 2011, the EPS13 position was opened only to current
OESE employees with Title III experience. On February 1, 2011, Complainant applied for the
EPS13 position. An Education Program Specialist, GS-1720-12, (C1) (female, Caucasian, age

2 We note that Hispanic is more properly classified as a national origin.
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32) also applied for the EPS13 position.3 Complainant and C1 were the only applicants referred
for an interview. The interview panel for the EPS13 position consisted of the Director,
Discretionary Grants Division, GS-15, (P1) (female, Caucasian, American, age 59), a
Supervisory Program Specialist, GS-15, (P2) (male, Caucasian, United States, age 64), and the
Group Leader for Standards, Assessments, and Accountability, GS-15, (P3) (male, Caucasian,
Cuban and Puerto Rican; age 60).4 Complainant’s second-level supervisor (S2) (female,
Caucasian, American, age 73) was the selecting official for the EPS13 position. The record
shows that S1 attended each of the interviews conducted for the position at issue and facilitated
or coordinated the selection process.5

C1 received the following scores during her interview for a total score of 54: (1) Question one –
13 points; (2) Question two - 13 points; (3) Question three - 10 points; (4) Question four - 10
points; and (5) Question five - 8 points. The record further shows that Complainant received the
following scores during his interview for a total score of 27.5: (1) Question one - 5 points; (2)
Question two - 7 points; (3) Question three - 6 points; (4) Question four – 5 points; and (5)
Question five - 4.5 points. After the interviews, the panel members provided their
recommendation to S1 who forwarded the recommendation to S2. The panel unanimously
recommended C1 for selection. On or about March 27, 2011, based upon the interview panel
members’ recommendation, S2 selected C1 for the EPS13 position.

In violation of the Agency’s Merit Promotion Plan (MPP) and the EEOC’s regulations, S1 failed
to keep the interview panelists’ individual score sheets, interview notes, or the applicants’
writing samples but did maintain a chart which included a roll-up of the scores provided by the
interview panelists.

With respect to the harassment claim, in accordance with the AJ’s findings of fact, during the
fiscal year 2011 (FY11), the Agency was operating under a continuing resolution which affected
the OESE’s budget. On January 5, 2011, Complainant emailed general information about
Wyoming’s onsite monitoring visits to Wyoming’s Title III Director (T3D). On January 11,
2011, Complainant emailed T3D a preliminary schedule concerning Wyoming’s onsite visit. On
or about February 1, 2011, Complainant submitted a Wyoming site visit schedule to S1, who on
that date, sent the schedule to S2. On February 11, 2011, S1 notified Complainant and C1 that
the proposed monitoring trip could not be approved and further advised them to not contact the
state until a monitoring schedule had been approved. On February 15, 2011, Complainant
submitted a revised monitoring schedule for Wyoming to S1, who approved the revised schedule

3 Complainant and C1 were co-workers.
4 At the time of the hearing, P1 and P2 no longer worked for the federal government and did not
testify. However, both P1 and P2 provided affidavits during the EEO investigatory process.
5 Despite Complainant’s bare and uncorroborated assertions to the contrary, the AJ concluded
that the extent of S1’s role was to develop the selection criteria, select the interview panel, gather
the scores, and pass along the interview panel's recommendation to the selecting official.

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on that day. On February 16, 2011, Complainant advised T3D of the changes to the schedule
that Complainant had previously provided to him.

On February 17, 2011, T3D sent an email to S1 expressing concern over the revised schedule
and the potential impacts of proceeding under the revised schedule. Complainant was
subsequently reassigned from monitoring Wyoming. T3D did not request that Complainant be
removed from the handling of Wyoming.

On April 29, 2011, Complainant made initial contact with an EEO counselor concerning the
instant complaint. On June 1, 2011, Complainant filed his formal EEO complaint concerning the
instant allegations.

The AJ did not find sufficient evidence of the following allegations as raised and characterized
by Complainant. Complainant alleges that on August 3, 2011, S1 rearranged and published the
SASA Title III monitoring schedule and removed him from being the monitoring lead of two of
the eight states originally assigned to him. Complainant also alleges that in August 2011, S1
asked at least three employees for their state assignment preferences resulting in reassignment of
four of his states to other employees. According to Complainant, S1 was not concerned about
his state assignment preference. Complainant further alleges that on August 30, 2011, S1 gave
preferential treatment toward C1 by permitting her to coordinate her own monitoring review for
Oklahoma even though it was to be eventually assigned to Complainant. Complainant also
asserts that S1 assigned some of his duties to C1 with respect to coordinating a monitoring
review for a site visit to Wyoming although Complainant was assigned as the lead at that time.
Lastly, on August 11, 2011, and as recently as September 8, 2011, Complainant alleges that S1
was talking to co-workers about him to make him look incompetent and to exclude him from
tasks and projects, i.e., technical assistance visits.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Chapter 9, at § VI.B. (Aug. 5, 2015).

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Claim 1 – Non-Selection

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). 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We find substantial evidence to support the AJ’s findings and conclusions. The AJ notes in her
decision that the record establishes that Complainant and C1 were both qualified for the EPS13
position and gave, at best, comparable writing samples. However, the AJ notes that the record
establishes that C1 responded better orally to the interview questions than Complainant in that
she provided more thorough responses, was self-reflective in her answers, and was better able to
discuss her strengths and weakness than Complainant. We agree with the AJ that the
preponderance of the evidence establishes that the interview panel recommended C1 based on
her successful interview performance. It is important to note that Complainant failed to discredit
the interview panel members’ account of C1’s and Complainant’s interview performance in
which they unanimously concluded that C1 out-performed Complainant. In addition, aside from
Complainant’s uncorroborated assertions, we agree with the AJ’s finding that the record is
devoid of evidence that S1 had any influence on the interview panel members’ assessment of the
interviews.

We also agree with the AJ, in concluding that the Agency’s failure to maintain certain relevant
selection records required by the EEOC regulations (29 C.F.R. § 1602.14) was not a dispositive
factor since sufficient alternative evidence exists in the record to support the Agency’s
legitimate, non-discriminatory reason for its selection decision. 6 However, we caution the
Agency that it is required to retain these documents for a period of one year from the date of the
personnel action, at a minimum, and should modify its records retention policy to ensure
compliance in future complaints.

Claim 2 – Hostile Work Environment

To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his

6 We find that denying Complainant’s motions for sanctions against the Agency for its failure to
maintain certain relevant selection-related documents to be within the discretion of the AJ.
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statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant’s] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, in order to establish his harassment claim, Complainant must show that he was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

We agree with the AJ that the record supports the conclusion that S1 reassigned several of
Complainant’s states to higher-graded specialists because of the complexity of the issues going
on in those states and reassigned Wyoming to C1 because of complaints received from T3D.
While Complainant disputes S1’s interpretation of the complaint that she received from T3D, he
fails to establish that S1’s interpretation was false or not credible.

We also agree with the AJ’s finding that Complainant failed to present evidence that contradicts
S1’s testimony in which she denies asking any employees for their preferences regarding state
assignments or S1’s assertion that the assignments were made based on the business needs of the
program.

With respect to Complainant’s assertion that he was not allowed to coordinate state monitoring
review, S1 asserts that no one was assigned any of Complainant’s duties. S1 attested that she
had not reassigned any duties, but that the tasks shifted based on the state assignments. With
respect to Oklahoma, she explained that the state had been assigned to Complainant’s co-worker
(C2) (female, Caucasian, American) during FY 2010-2011 and that C2 would monitor the state
because the monitoring would occur within the same fiscal period. S1 also clarified that
effective September 30, 2011, Oklahoma would be transferred to Complainant and he would
conduct all activities for the state, such as review of evidence and close out of the monitoring
findings. S1 attested that Wyoming was reassigned to C1 for the next fiscal year (i.e., FY 2011-
2012) and she would be monitoring and coordinating activities for the state during the period it
was assigned to her. The reassignment of Oklahoma to Complainant from C2 did not occur until
October 1, 2011, but the on-site was scheduled for September 26-30, so C2 handled the
coordination since the on-site occurred while it was still assigned to her. S1 also attested that the
on-site for Wyoming was scheduled for January 2011 and that Wyoming was assigned to C1
effective October 1, making C1 responsible for coordinating the on-site at that time.

The AJ notes that S1 attests that she has not made any comments to make Complainant look
incompetent or exclude him from tasks. S1 further asserts that Complainant takes what his
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coworkers say out of context and applies that information to suit his own purposes. S1 also
testified at the hearing that she has never screamed or yelled at Complainant, that she has never
made any demeaning comments about him, and that budget restraints, random selections, or
mission requirements precluded Complainant’s attendance at certain events.

While S1 denies excluding and/or talking about Complainant, we agree with the AJ, based upon
various accounts by co-workers, that the evidence establishes by a preponderance of the
evidence, that Complainant and S1 often disagreed regarding work-related matters and had a
very tense working relationship. However, we agree with the AJ that the record is devoid of
evidence to support the conclusion that S1’s alleged conduct was motivated by discriminatory
and/or retaliatory animus. The AJ also finds that the evidence does not support the conclusion
that the alleged harassing treatment directed towards Complainant was individually or
collectively sufficiently offensive, intimidating, or demeaning to meet the legal definition of a
hostile work environment.

Arguments On Appeal

Complainant raises numerous assertions on appeal. Most notable is the assertion that S1 lied in
her affidavit by stating that she had discarded the interview notes and writing samples because a
Human Resources Specialist (HR) had informed her to do so. Complainant also asserts that
HR’s testimony directly contradicts this statement. The record shows that S1 made the following
statements in her affidavit, in pertinent part:

9. I contacted the Agency’s human resource office concerning the maintenance
and/or disposal of the interview notes and writing samples. I was advised by
[HR] that HR did not need handwritten notes or the writing prompt and only
needed the final scores. I did not receive any other guidance on retention and/or
disposal of the interview notes.

11. However, I did not retain the individual notes of the interview panel members
because I was not aware that it was required. Because HR did not need the
interview panelists’ handwritten notes or candidates’ writing prompts, I did not
see the need to retain them and disposed of them. I thought that it was sufficient
to retain the panel members’ scores for each candidate.

In its reply brief, the Agency argues that S1 never stated that HR advised her to discard the
interview notes or writing samples. We agree with the Agency that the distinction is significant.
We find that there is no actual contradiction between S1’s statement and HR’s testimony. HR
testified that Human Resources is not involved in the interview process, does not receive
interview notes, and does not provide any guidance on how to handle interview notes or similar
documents. HR also testified that she did not give S1 any instructions on what do to with the
interview notes. Accordingly, we find that HR’s testimony does not contradict or discredit S1’s
statements and sufficient evidence exists in the record to support the AJ’s credibility findings.
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We note that the AJ’s findings and conclusions are based, not only on S1’s assertions, but on
other testimonial evidence (i.e., statements by each member of the interview panel, management
officials and co-workers) and documentary evidence found in the record.

CONCLUSION

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 Action which adopts the AJ’s
finding that Complainant failed to present sufficient evidence of disparate treatment or
harassment as alleged.

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
1.
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.
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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

March 27, 2018
Date