Emilia Z.,1 Complainant,v.Julian Castro, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Feb 4, 2016

0120142952 (E.E.O.C. Feb. 4, 2016)

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

Emilia Z.,1
Complainant,

v.

Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120142952

Hearing No. 450-2014-00006X

Agency No. HUD-00027-2013

DECISION

On August 20, 2014, Complainant filed an appeal from the Agency’s July 21, 2014 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Civil Rights Analyst-Investigator at the Office of Fair Housing and
Equal Opportunity (FHEO) in Fort Worth, Texas. On February 14, 2013, Complainant filed
an EEO complaint in which she alleged that the Regional Directors of the FHEO in Fort Worth
and Denver, Colorado, in their capacities as selecting officials (SO1 and SO2, respectively),
discriminated against her on the bases of race (African-American), sex (female), disability
(carpal tunnel syndrome, residual effects of neck surgery, arthritis, respiratory condition, back
condition), and age (51) by not selecting her for Supervisory Equal Opportunity Specialist

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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vacancies in those offices. At the conclusion of the ensuing investigation, the Agency notified
Complainant of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Although Complainant timely requested a hearing,
the AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant's objections, issued a summary judgment decision on June 30, 2014.
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.

The record establishes that on September 19, 2012, Complainant was notified that although her
name had appeared on the merit promotion certificate of eligibles for the Fort Worth vacancy,
she had not been selected for that position. When SO1 received the certification and the
application packages, he referred them to four of his subordinates with directions to review the
packages individually and make their recommendations. No interviews were conducted. One
of the four reviewers was SO2. All four panelists recommended the eventual selectee for the
Fort Worth position (Selectee 1), a 43-year-old White male with no disability, as the best-
qualified candidate. One of the reviewers averred that while Selectee 1 was not his first
choice, he concurred with SO1’s decision. Investigative Report (IR) 80-82, 86-88, 92-93, 99,
136, 148, 156, 287-88, 291-92, 297, 302, 304.

On October 18, 2012, Complainant learned that she had not been selected for the Denver
position. As with the Fort Worth vacancy, she was one of a number of candidates whose name
appeared on the merit promotion certificate of eligibles. SO2 and three of her subordinates
interviewed the candidates, with the three panelists providing feedback and making their
recommendations to SO2. The two panelists who provided testimony both averred that
Selectee 2, a white female presumably with no disability, was the best-qualified candidate.
They noted that the selectee was an outstanding candidate, that she had a law degree and had
demonstrated broad technical knowledge of the FHEO’s statutory and regulatory enforcement
scheme. Further, they noted that during the interview, Selectee 2 was able to correctly recite
the elements of a disparate impact claim within the context of fair housing law and converse
fluently on that subject, whereas Complainant could not. IR 104-07, 112-13, 315, 322-23,
335, 347; Deposition dated March 5, 2013, pp. 15-17.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving promotions unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on her disparate treatment claim, Complainant
would have to present enough evidence to raise a genuine issue of material fact as to whether
the selecting officials were motivated by unlawful considerations of her race, sex, disability, or
age in connection with their decisions not to choose her for either SEOS vacancy. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000).

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In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to the existence of an unlawful motivation by presenting documents or sworn testimony
showing that the reasons articulated by the SOs for not selecting her are pretextual, i.e., not the
real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. In nonselection cases, evidence of
pretext can take the form of a showing that Complainant’s qualifications for the position were
plainly superior to those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC
Appeal No. 0120141721 (December 3, 2015). It can also take the form of discriminatory
statements or past personal treatment attributable to either SO, comparative or statistical data
revealing differences in treatment across racial, gender, age-related or disability-related lines,
unequal application of Agency policy, deviations from standard procedures without explanation
or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa
F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

Complainant insisted that she was the best-qualified candidate by virtue of having a Masters
Degree in Business Management and being trained under the auspices of the Agency’s
Emerging Leadership Program. IR 61-63. The Commission has long held, however, that an
employer has discretion to choose among equally qualified candidates as long as the selection is
not based on unlawful criteria. Complainant v. Department of Homeland Security, EEOC
Appeal No. 0120141478 (July 31, 2015). While Complainant was one of a number of
candidates found highly qualified and referred to SO1 and SO2, none of the review panelists
for either position provided any indications that she was their top choice. Complainant has not
submitted any evidence tending to show that her qualifications were plainly superior to those of
Selectee (1) or Selectee (2), Consequently, we agree with the AJ that no genuine issue of
material fact exists with respect to the relative qualifications of Complainant, Selectee 1 or
Selectee 2 for the two positions.

When asked by the investigator why she believed that her race, sex, disability, and age were
motivating factors in her nonselection for the Fort Worth position. Complainant responded with
statements such as “SO1 is a racist who does not like Black women,” and that “SO1 wanted
somebody younger and thinks that I cannot move around as a nondisabled White male.” When
asked the same question regarding her nonselection for the Denver vacancy, Complainant
merely replied that Selectee 2 was White and she was Black. IR 61, 63. Her entire argument
appears to be rest on the notion that the acts complained of, in and of themselves are sufficient
to establish motive. This is simply not true. The laws the Commission enforces cannot prevent
employers from making decisions that their employees disagree with, unless those decisions are
rooted in a statutorily proscribed motivation. And on this crucial issue, Complainant did not
provide evidence of any of the indicators of pretext described above. She has not submitted
any sworn statements from other witnesses or documents that contradict the explanation
provided by the SOs for their decisions, or which call the veracity of SO1 or SO2 into question.
We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to
the motivation of the two SOs in connection with their decisions to promote the two Selectees
over Complainant.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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.
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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

February 4, 2016
Date