Dan H.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Oct 11, 2018

0120172223 (E.E.O.C. Oct. 11, 2018)

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

Dan H.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120172223

Hearing No. 480-2015-00028X

Agency No. HHSFDAORAPA10613

DECISION

On June 9, 2017, 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
May 12, 2017, 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 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 a GS-9 Physical Science
Technician, with the Food and Drug Administration’s Office of Regulatory Affairs, Drug
Chemistry Branch, Pacific Regional Lab Southwest, located in Irvine, California. On January 28,
2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on
the bases of national origin (Pakistan), age (65), and reprisal (his spouse’s prior protected EEO
activity) when, on August 30, 2013, he learned he was not selected for the position of

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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Interdisciplinary Scientist, GS-9/11/12; under Vacancy Announcement number: HHS-FDA-ORA-
MP-13-924176.

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. Over Complainant's objections, the AJ assigned
to the case granted the Agency’s January 29, 2015 motion for a decision without a hearing and
issued a decision without a hearing on March 20, 2017. When the Agency failed to issue a final
order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s
final action pursuant to 29 C.F.R. § 1614.109(i).

FACTUAL BACKGROUND

The undisputed facts show that Complainant has two Masters degrees. He also has at least three
relevant certificates, and other credits. Past supervisors rated the Complainant as “Fully
Successful.” In 2006, Complainant’s wife filed an EEO complaint alleging sexual harassment by
an individual who worked in the Director’s laboratory. In 2008, the wife’s complaint was resolved
through mediation.

In 2008, Complainant asked the Laboratory Director (LD) what he could do to be more competitive
in his applications to various positions in the laboratory. LD stated that Complainant acquired his
degrees a long time ago, and that his knowledge may have diminished since then. At some other
time, LD said that he wanted to get rid of “old-timers” but, under the law, he could not, and this
“was his irony.”

In January 2013, the Agency announced a vacant Interdisciplinary Scientist position that everyone
generally understood to have been created for a specific coworker (SE). However, the Agency
cancelled that announcement. In July or August 2013, the Agency again posted a vacant
Interdisciplinary Scientist position. The position required a college degree, or course work with
additional experience or education. Complainant applied, was deemed qualified, and was referred
to the selecting official, LD. SE—who was the employee regarded as the person for whom the
prior position was created—was also deemed qualified.

LD assigned the Chemistry Branch Director (RO) as the recommending official. In the past, RO
had been Complainant’s supervisor and had given him a favorable review. RO had also supervised
SE. RO sought the advice of three supervisors’ regarding the candidates’ work performance. The
supervisors reported a consensus that, based on their experiences with both Complainant and SE,
SE was the superior candidate. RO then recommended SE to LD. RO explained that, in her
opinion, as compared to the Complainant, SE was more timely and able to handle greater workload
demands, he had demonstrated he was a consistently reliable employee in his sample assignments,
and he was more accurate without correction. RO also claimed that she considered the quality of
the product SE produced and the initiative and volunteerism he demonstrated. LD concurred with
RO’s recommendation.
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Complainant was not interviewed for the position, although two fellow candidates—including SE
(who was a Physical Science Technician) and one Microbiological Science Technician—were
interviewed. Ultimately, the Agency selected the two interviewed candidates for the position. SE
was hired for the Chemistry position, which is the position at issue in this complaint. Although
the position required knowledge of chemistry, SE experienced some struggles in his analyzing
food chemistry samples.

On appeal, Complainant contends that that the AJ ignored his clearly superior qualifications.
Accordingly, Complainant requests that the Commission reverse the final action.

ANALYSIS AND FINDINGS

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. (Aug. 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). 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 Chapter 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”).

We must 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.
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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 Def., 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).

To prevail in a disparate-treatment claim absent direct evidence of discrimination,2 Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of
establishing 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.
Corp. 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, 441 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). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason
proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was
subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000); Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318. 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep't of Veteran Affairs, EEOC
Request No. 05960473 (Nov. 20, 1997).

2 Direct evidence analysis is not used here since Complainant has not linked the age-based
comments by LD in 2008 to the Agency’s non-selection decision in July 2013.
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The Commission's policy on retaliation prohibits any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter a complainant or others from engaging in a
protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, No.
915.004 (Aug. 25, 2016).

We assume for the purposes of this decision that Complainant presented sufficient evidence to
establish a prima facie case of discrimination and retaliation. We agree with the AJ in finding that
Complainant does not point to evidence sufficient to refute the Agency’s stated reason for its
selection decision (i.e., that the recommending supervisors with whom RO consulted rated SE
higher than Complainant). We also agree with the AJ’s finding that Complainant failed to present
sufficient evidence to establish that he was significantly more qualified than SE. Moreover, the
record shows that SE had the types of experience and skills that the Agency was looking for in this
position. Although Complainant asserts that the Agency should have anticipated the struggles SE
had in analyzing food chemistry samples, based upon SE’s lack of formal education in this area,
the record shows that the recommending officials reasonably believed, based upon their first-hand
knowledge, that SE possessed the skills necessary to overcome any absence in formal education
to be successful in the position at issue, and reasonably considered SE’s reliability and initiative
more important than formal education.3 We also agree with the AJ in finding the record devoid of
evidence that the recommending managers and RO held discriminatory or retaliatory animus.

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 action implementing the
AJ’s summary judgment decision which found in favor of the Agency.

3 Furthermore, to the extent that preselection may have played a role here, we note that even if
preselection occurred, it would not be unlawful unless Complainant can show that the preselection
was driven by discriminatory or retaliatory animus. See Nickens v. Nat'l Aeronautics Space
Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected individual and not some
prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).
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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.
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.
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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

October 11, 2018
Date