Gena C.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Administration for Children and Families), Agency.

Equal Employment Opportunity Commission

Apr 10, 2019

0120180258 (E.E.O.C. Apr. 10, 2019)

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

Gena C.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Administration for Children and Families),
Agency.

Appeal No. 0120180258

Agency No. HHS-ACF-0229-2014

DECISION

On October 20, 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
October 17, 2017, final decision 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 decision.

BACKGROUND

Complainant worked as a Child Care Program Specialist, GS-0101-11, in the Agency’s Office of
Child Care (OCC), located within its headquarters in Washington, D.C. On July 22, 2015,
Complainant filed an EEO complaint in which she alleged that the Technical Assistance Division
Supervisor, her immediate supervisor (S1) and the OCC Director, her second-line supervisor (S2)
discriminated against her on the bases of race (African-American), color (Black), and age (50) by:
(1) requiring her to perform GS-14 level duties without commensurate compensation since 2008;
and (2) by passing her over for promotion to the position of Management and Program Analyst,
GS-0101-13, on March 18, 2014.

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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At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). On February 3, 2015,
Complainant elected to receive a final decision. In accordance with Complainant’s request, the
Agency issued a final decision on March 3, 2015, pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant appealed the Agency’s final decision, and in Gena C. v.
Dep’t of Health & Human Servs., EEOC Appeal No. 0120151764 (June 7, 2017), the Commission
ordered the Agency to conduct a supplemental investigation and to issue a new final decision with
appropriate appeal rights. Per our order, the Agency timely completed its supplemental
investigation, presented Complainant with the supplemental investigative report (SIR) and on
October 5, 2017, issued its second final decision. Again, the Agency found that Complainant
failed to prove that she had been subjected to discrimination as she alleged. The instant appeal
followed.

Issue (1): Contracting Officer Representative (COR) Responsibilities since September 2008.

Complainant was hired as a GS-11 on May 19, 2008 and received a career-ladder promotion one
year later. IR 281. She averred that in September 2008, four months after she was hired, her
supervisor at the time assigned her the duties of a COR with respect to a particular contract that
the National Child Care Information Center (NCCIC) was responsible for managing and
monitoring. IR 84. S1 became her supervisor in February 2009. IR 302. Complainant’s COR
duties included: holding weekly meetings with the Contract Director, reviewing financial
statements and contract deliverables; approving invoices and vouchers; coordinating with her
supervisor and regional managers, as appropriate; and conducting technical assistance visits. IR
89, 129, 131-34, 302. These duties had been performed previously by a GS-14 senior Management
and Program Analyst, who had announced that she was going to retire. IR 287.

Complainant averred that her COR duties constituted GS-14 level work for which she was never
given appropriate compensation, and that in February 2010, when she asked S1 and S2 about a
pay increase, they told her that there was no budget for that, and that in light of those budgetary
constraints, she should be happy to have a job. IR 86. There are no indications in the record that
Complainant had ever asked for a desk audit of her position. S2 averred that COR duties were
carried out by staff at a range of grades, most of which were lower than GS-14. She further averred
that a staff member’s grade was determined by their total portfolio, their overall responsibilities,
and the degree of oversight. She noted that a GS-14 COR might be expected to manage a contract
with much less supervisory oversight than a GS-12 COR, and that a GS-14 COR would be
expected to manage multiple complex projects simultaneously. IR 287. According to a GS-14
Program Analyst who worked in a different OCC Division than Complainant, it was a common
practice to relieve senior analysts of their COR duties prior to their retirements and to assign those
duties to lower-graded analysts. IR 322.

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When asked why she believed that her race, color, or age were factors in connection with not being
promoted or otherwise given a pay increase to compensate her for her COR duties, she maintained
that her COR work was at least GS-13 work, and that with the exceptions of 2008 and 2012, her
yearly performance appraisal ratings had been exceptional. IR 87, 145-232.

Issue (2): Nonselection for GS-0101-13 Management & Program Analyst Position, March 2014.

Fifteen candidates were interviewed for this position, including Complainant. S1 and another
panelist, the Director of the Oversight and Accountability Division (African-American, age 59)
served as the recommending officials. S2 was the selecting official. S1 and the other panelist had
reviewed the application packages, conducted the interviews, and made their joint
recommendation to S2 that the Selectee be chosen. SIR 33-34, 71-72.

In a memorandum dated February 19, 2014 and addressed to S2, S1 requested approval to hire the
Selectee to fill the GS-12 Management and Program Analyst vacancy. In support of their
recommendation, S1 wrote that since she had been hired five years earlier, her performance had
always been rated as exceptional and had reflected strategic planning across various Agency
priorities. She stated that the Selectee acted with utmost diplomacy when dealing with high-level
officials, that for the previous year, she had led outreach activities on proposed rules, arranging
calls, meetings, and webinars with hundreds of stakeholders nationwide. S1 further stated that the
Selectee had been tapped by leadership to co-lead the outreach phase of a $500 million partnership
grant to Head Start / Early Child Care programs. In addition, S1 noted that the Selectee had
received accolades from the Agency’s leadership for many OCC news contributions. IR 297; SIR
57-58. S2 averred that she concurred with the panel’s recommendation because she knew the
selectee as being extremely proactive in helping her to prepare for a keynote speech to an
organization of after-school care providers and helped the Agency resurrect its relationship with
that organization. More generally, S1 averred that she considered the candidates’ recent
performance, and that in 2012 and 2013, the selectee had attained the highest possible appraisals
at level 5, whereas Complaint had achieved performance levels of 3.8 and 4.6, respectively, for
those two years. IR 277-78, 298. S1 and S2 acknowledged that Complainant was qualified for
the position, but that the Selectee had the edge in terms of demonstrated performance. IR 278,
297.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

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Disparate Treatment

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, 802
(1973). The first step would generally be to 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed in this case, however, since S1 and S2 articulated
legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983). As to her allegation of having to perform COR duties,
S1 and S2 stated that it was common practice for analysts in all grades to be assigned liaison and
oversight responsibilities, and that in accordance with that practice, Complainant was given COR
responsibilities over a single contract. Regarding her promotion allegation, S1, S2 and the second
Panelist all stated that although Complainant and the Selectee were certified as being among the
best-qualified for the position, the Selectee was the better candidate.

To ultimately prevail, Complainant must show that the explanations put forth by S1 and S2 for
their actions were a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993). In other words, she would have to prove, by a preponderance of the evidence, that S1 or
S2 was motivated by unlawful considerations of her race, color, or age when they had her
performing COR duties since 2008 or not promoting her to GS-13 in March 2014. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal
Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No.
0520080211 (May 30, 2008). In non-selection cases, Complainant could demonstrate pretext by
showing that her qualifications for the position were plainly superior to those of the selectee. Hung
P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators
of pretext include discriminatory statements or past personal treatment attributable to those
responsible for the personnel action that led to the filing of the complaint, comparative or statistical
data revealing differences in treatment across various protected-group 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. U.S. Postal Serv.,
EEOC Appeal No. 0120141697 (Nov. 12, 2015).

We begin with Complainant’s allegation that her COR duties should have entitled her to
compensation at the GS-13 level at least. She bases this contention upon the fact that the
responsibility for managing the contract in question was held by a GS-14 program analyst prior to
it being passed to her. As we noted previously, however, both S1 and S2 averred that COR duties
were assigned to analysts of all grades and that compensation depended not upon the mere
assignment of the contract, but upon such considerations as the degree of independent discretion
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and the number of contracts being managed simultaneously. Complainant had been assigned only
one contract. Moreover, it does not appear that she ever requested a desk audit in order to
determine whether a reclassification of her position was necessary. She has presented neither
affidavits, declarations, or unsworn statements from witnesses other than herself nor documents
that contradict the explanations provided by S1 and S2 on this issue or which call their veracity
into question. We therefore agree with the Agency that Complainant has not presented sufficient
evidence to establish the existence of an unlawful discriminatory motive on the part of S1 or S2 in
connection with their decision to assign her COR duties in September 2008.

When asked why she believed her race, color, or age played a role in her nonselection for the
Management and Program Analyst position in March 2014, Complainant replied that not many
African-Americans were promoted in her office beyond GS-12 and that the Selectee was only 30
years old. IR 87-88. She averred that while five White Child Care Program Specialists were
promoted to GS-13 since 2008, only one Black female was promoted to GS-13 during that time
frame, despite an eligible pool of eight Blacks and 16 Whites. IR 88. Complainant also provided
detailed explanations as to why she believed that she was better qualified than the selectee. She
averred that the Selectee’s expertise was in logistics and consequently, that the Selectee did not
provide substantive technical assistance in any of the content areas of child care while she had
twenty years of experience in the field of child care within and outside of the Agency and was a
National Head Start Fellow. IR 84-85, 87-88. She averred that she had a year of specialized
experience equivalent to GS-13 in term of technical assistance she provided to states, territories
and Native Tribes concerning child development and other similar programs. IR 102-04. She
averred that she was recognized for collecting data from OCC regional offices and developing a
template for a publication. IR 233-34, 236, 264.

Complainant should 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.
Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (March 8, 2019). They may
select candidates with fewer years of experience if they believe that such candidates are best
qualified to meet the needs of the organization. Barney G. v. Dep’t of Agric., EEOC Appeal No.
0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is
not premised upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No.
0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
making those decisions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). There
is no doubt that Complainant possessed extensive experience that more than qualified her for the
position. But the fact remains that while her qualifications were comparable to the Selectee’s, they
were not plainly superior.2

2 A Panelist on the selection committee stated in her affidavit that she did not have her interview
notes because she may have discarded them when they moved offices in 2015. SIR 34.
Complainant urges the Commission to draw an adverse inference and conclude that the
information in those notes would have been unfavorable to the Agency. EEOC Regulation 29
C.F.R. § 1602.14 provides that agencies must preserve any records pertaining to selections and
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In support of her contention that S1 harbored discriminatory animus toward her, Complainant
averred that at a staff meeting that took place in June 2012, it was mentioned by someone at the
meeting that Complainant had a garage and a pool in her backyard. She further averred that S1
commented that she did not even have a garage at her house, and that she, Complainant, was
offended by this statement, which she characterized has having racial undertones because she lived
50 miles from work where housing was cheaper. IR 87. S1 averred that she merely stated that she
would love to have a garage, that she made her comment during a casual conversation, and that
Complainant neither commented nor displayed any body language indicating that she had been
offended. IR 303. Based upon the totality of the circumstances surrounding this encounter, and
in the absence of statements from others who witnessed it, we find no evidence that S1’s comment
reflected discriminatory animus toward Complainant.

Additionally, Complainant averred that she had been passed over for other vacancies since 2008.
In particular, she averred that she applied for promotion to GS-13 in January 2010 and expressed
her belief that she was more qualified than the selectee for that position since she had been
successfully performing the major duties set for in the job announcement for two and a half years.
IR 86, 105. S1 and S2 responded that Complainant did not appear on the selection roster because
she did not meet the eligibility criteria for the position, and also that there were two selectees, one
of whom was a Black female aged 41. IR 279-80, 299-300. To the extent that Complainant
presents this earlier nonselection as evidence of discriminatory animus on the part of S1 or S2 in
the current nonselection, we disagree with that notion. The fact that one of the selectees was a
Black female undermines any evidentiary value the prior nonselection might have had.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. The Commission finds no
persuasive evidence that Complainant's protected classes were a factor in any of the Agency's
actions. The Commission finds that Complainant failed to show that her qualifications for the
position at issue were plainly superior to those of the selectee. In this case, the selectee had
attributes that justified her selection, and the selecting official and selection panel members
affirmed that they believed the selectee was better equipped to meet the Agency's needs.

promotions for a period of one year from the date of the making of the record or the personnel
action, whichever comes later. Here, Complainant has presented no evidence of bad faith or
otherwise contumacious conduct by the Agency warranting a sanction. Moreover, the interview
notes from S1 were preserved and are a part of the investigative record. SIR 59-64. We must
therefore decline Complainant’s request to draw an adverse inference. See e.g. Ponce v. Agency
for Int’l Dev., EEOC Appeal No. 0120131173 (June 24, 2013), req. for recon. den’d EEOC
Request No. 0520130580 (Jan. 8, 2014) citing Blanco v. Evtl. Prot. Agency, EEOC Appeal No.
01A52674 (Aug. 30, 2005) (affirming summary judgment decision in favor of the agency where
the agency did not retain all the interview notes but affidavits from panel members contained
unanimous testimony). Nevertheless, we advise the Agency to take better care to preserve
documents in the event of an EEO complaint being initiated.

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At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory animus
was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission
finds that Complainant has not established that she was subjected to discrimination or reprisal as
alleged.

CONCLUSION

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

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.
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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. 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

April 10, 2019
Date