Dolly H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019000599 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dolly H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2019000599 Hearing No. 510-2017-00123X Agency No. P6-16-0034 DECISION 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 September 17, 2018, 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. 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 Software Engineer, 0854, GS-12, Step 10, at the Agency’s Defense Contract Management Agency (DCMA) Lockheed Martin facility in Orlando, Florida. Selecting Official was the designated Agency selecting official for the three positions Complainant applied for and was not selected for as detailed in her formal complaint. Selecting Official has served has Complainant’s second-level supervisor since August 2012. 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. 2019000599 2 On May 16, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), age (61), and in reprisal for prior protected EEO activity when: 1. On February 22, 2016, Complainant became aware that Selecting Official did not select her for the Program Manager (Integrator) position, GS-0340-13, vacancy announcement number SWH815P68507671485450, located at DCMA, Orlando, Florida.2 2. On November 25, 2015, Selecting Official failed to advance Complainant’s career to a GS-13 position when he did not select her for the Operations Research Analyst position, GS-1515-13, vacancy announcement number SWH815P68027011492617R, following her non-selection for the 120-day temporary promotion for the same position (SWH815P68027011470209) on July 27, 2015.3 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 March 26, 2018, motion for a decision without a hearing and issued a decision without a hearing on August 24, 2018. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant argues the evidence in the record establishes a pretext for discrimination because Selecting Official violated the Agency’s Human Resources (HR) policy by selecting an individual who had received another temporary promotion within a year of the promotion at issue. Complainant does not dispute that Selecting Official used a panel to interview and determine a recommendation for the 120-day temporary promotion. Rather, Complainant argues the use of the panel itself was unprecedented and shows pretext. Complainant also contests the AJ’s decision to issue a decision without a hearing. The Agency did not submit a brief on appeal. 2 Selectee One was the candidate selected by Selecting Official for this Program Manager position. 3 While the Agency did not delineate the claim as such, Complainant alleges discrimination in nonselection for two distinct vacancies for the same position. She alleges discrimination when she was not selected in July 2015 for this temporary position and again in November 2015 when she was not selected for the permanent position for this same job title. Selectee Two was the candidate selected for both the temporary and permanent Operations Research Analyst position by Selecting Official. 2019000599 3 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 determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has failed to present any facts in dispute. In the instant case, the AJ adopted and incorporated the Agency’s motion for a decision without a hearing and found that Complainant failed to establish that she was subjected to a discrimination as alleged. We find the AJ properly issued a decision without a hearing to resolve Complainant’s complaint as there is no disputed issue of material fact. 2019000599 4 In order to prevail in a disparate treatment claim, 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 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non- discriminatory reason for its actions. Texas Department 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 (2000). Here, assuming arguendo Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally, Complainant failed to show that these reasons were pretextual. As an initial matter, we note Complainant argues on appeal that she can establish pretext by the mere fact that Selecting Official selected an individual who had received a promotion within the previous year, which Complainant alleges is a violation of the Agency’s HR policy. Complainant offers no evidence or additional arguments to support the assertion that Selecting Official violated HR policy. We find this argument fails. Even if true, the violation of an HR policy in selecting an individual alone does not establish that the decision to not select Complainant was based on discriminatory animus. In nonselection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Complainant v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant must bear in mind, however, that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120131478 (Jul. 31, 2015). Agencies may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). In her complaint, Complainant alleges she was discriminated against when she was not selected for three positions, dating back to July 22, 2015. While the Agency did not categorize her claims as such, we will address Complainant’s allegations in chronological order for clarity of the record. Regarding the first vacancy Complainant alleges discrimination based on her protected status when on July 27, 2015, Selecting Official did not select her for the 120-day temporary promotion to Operations Research Analyst position, GS-1515-13, vacancy announcement number SWH815P68027011470209. Regarding the 120-day temporary position, the record establishes six individuals were selected for interviews by the panel. The panel was given criteria for the position and rating the candidates during the interview. The panel consisted of three Agency management officials. 2019000599 5 Panelists ranked candidates on a variety of criteria including education, functional training, awards, interview, pertinent outside activities, and understanding of principles and guidelines for different critical areas for the temporary Operations Research Analyst position. Selecting Official was not a part of the panel. Rather, the panel members individually ranked the six individuals interviewed in order from top ranked to Selecting Official. Notes from the three panel members establish Selectee Two was the highest ranked individual for two panelists while Complainant was highest ranked for the other panel member. Selectee Two scored higher in the interview portion than Complainant. Ultimately, Selectee Two was the top ranked individual recommended by the panel to Selecting Official while Complainant was ranked second to Selectee Two. Selecting Official stated he reviewed the recommendation of the panel and qualifications of the applicants. Selecting Official agreed with the panelist’s recommendation and Selectee Two’s qualifications for the position. Thereafter, Approving Official approved Selecting Official’s selection of Selectee Two for the 120-day temporary promotion to Operations Research Analyst position, GS-1515-13, vacancy announcement number SWH815P68027011470209. Despite Complainant’s allegations that Selecting Official discriminated against her based on her protected status, we find the record does not collaborate these allegations. Nothing in the record and nothing besides Complainant’s narrative show she was plainly superior to the selectee or the decision to not select her was based on her protected status. Regarding the second vacancy Complainant alleges Selecting Official discriminated against her based on her protected status was on November 25, 2015, when Selecting Official did not select her for the Operations Research Analyst position, GS-1515-13, vacancy announcement number SWH815P68027011492617R. Selecting Official detailed this was a permanent position for the same 120-day temporary promotion back in July 2015. The criteria for the position and interview questions were the same as those used for the temporary position. The record establishes the same three panel members reviewed the notes for the original six candidates who interviewed for the temporary position. Additionally, the panelist reviewed and interviewed one additional candidate. The three panelists again ranked the candidates for this position based on the criteria for the position and recommended Selectee Two for this permanent position. Complainant was ranked third by the panelists for this permanent position. Notes from the panelists revealed Complainant was rated lower in Education, Functional Training, and in her interview than Selectee Two. Selecting Official stated he agreed with the panelists’ recommendation, as did the Approving Official. We find Complainant failed to show that her qualifications for the position at issue were plainly superior to those of Selectee Two or that the selection was based on her protected basis. Lastly, Complainant alleges she was not selected for the position of Program Manager (Integrator) position, GS-0340-13, vacancy announcement number SWH815P68507671485450, based on her protected status. Selecting Official stated a panel was necessary due to the large number of candidates. Selecting Official provided a three-person panel with criteria for the position and instructions to ultimately rate each candidate as highly recommended, recommended or not recommended based on their interview, education, functional training, awards, and ability to meet the criteria of the position. Two of the panelists rated Complainant as not recommended for this position. 2019000599 6 The other panelist rated Complainant as only recommended for the position. The panelists rated the candidates and the top five candidates were recommended to the Selecting Official for this position. Complainant was not rated in the top five candidates. On the other hand, Selectee One was rated highly recommended by each of the three panelists and rated in the top five candidates. While Complainant argues Selectee One has fewer years of experience with DCMA, Complainant admits Selectee One has more educational experience, including a Master’s Degree in Program Management from Harvard University. Selecting Official even reiterated that when deciding between the top three candidates referred by the panelists, he eliminated one due to that candidate’s lack of a Master’s Degree. Selecting Official stated between the top two candidates who had Master’s Degrees, he deferred to the recommendation of the panelists and selected Selectee One, who was rated as highly recommended by all three panelists. We find Complainant has failed to establish her qualifications were plainly superior and that Complainant’s evidence fell short of linking management’s conduct to unallowable considerations of her prior EEO activity. Moreover, Complainant failed to establish that similarly situated individuals outside of her protected class were treated more favorably to show the Agency’s reasons were pretextual. We agree with the AJ’s finding that the evidence failed to demonstrate that management’s actions were rooted in impermissible discrimination. After a review of the record, we find that the record is adequately developed and there are no material facts in dispute. We also find that the AJ properly found that the matter was properly decided without a hearing and that the AJ properly incorporated the Agency’s motion therein. Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the foregoing, we find that Complainant has failed to provide any evidence that the incidents cited in the complaint, if they occurred as Complainant alleged, were motivated by discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final order. 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. 2019000599 7 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 court has the sole discretion to grant or deny these types of requests. 2019000599 8 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 4, 2020 Date