0120150182
03-10-2017
Helen G.,1 Complainant, v. Michael Young, Acting Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Helen G.,1
Complainant,
v.
Michael Young,
Acting Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120150182
Hearing No. 461-2012-00141X
Agency No. OCFO-2008-00151
DECISION
On October 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 17, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Administrative Judge (AJ) abused his discretion by not sanctioning the Agency for failing to retain the interview notes; and (2) whether substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of race (African-American) and reprisal (filed EEO complaints in 1995 and 1998; served as a witness in two EEO complaints in 2007) in connection with a non-selection.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Assistant, GS-0335-08, at the Agency's National Finance Center (NFC), Information Technology Services Division, Operations Branch, Scheduling Section, in New Orleans, Louisiana.
Complainant applied for the position of IT Specialist (Applications Software), GS-2210-07/09/11, advertised under vacancy announcement number DS132634. The announcement closed in April 2007. The announcement was for two vacancies (one in Section 1, one in Section 2) in the NFC's Government Employees Services Division, Payroll Applications Systems Branch. The selecting official for the vacancy in Section 1 was the Section 1 Head (SO1 - Caucasian). The selecting official for the vacancy in Section 2 was the Section 2 Head (SO2 - Caucasian). The reviewing official for both vacancies was the Branch Chief (RO - Caucasian). Prior to the selection process, Complainant had never met SO1, SO2, or RO.
The vacancy announcement stated that the major duties of the position included writing programs for large-scale computer applications by using Common Business-Oriented Language (COBOL) and participating in the development of Job Control Language (JCL) required to execute subsystems. In addition, the vacancy announcement stated that candidates qualified for the position if they had a bachelor's degree in computer science (or a related field) or if they had at least one year of specialized experience that demonstrated knowledge of IT principles, techniques, and requirements.
The Office of Personnel Management (OPM) issued a certificate of eligibles referring Complainant and several other qualified candidates for selection. On the certificate, the qualified candidates had ratings from OPM ranging from 102 points to 106 points. SO1 and SO2 separately interviewed the qualified candidates. SO1 and RO interviewed Complainant by phone; SO2 interviewed Complainant in person. The record does not contain interview notes because the selecting officials did not retain their notes. Following the interviews, SO1 and SO2 selected two candidates (SE1 - Caucasian, SE2 - Caucasian) for the position.2 At the time of the selections, SO1 and SO2 each drafted a memorandum for the record providing justifications for the candidate's selection.
On January 11, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity (filed EEO complaints in 1995 and 1998; served as a witness in two EEO complaints in 2007) when it did not select her for the position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ granted the Agency's June 25, 2009, motion for a decision without a hearing and issued a decision without a hearing on July 9, 2009. The AJ concluded that Complainant did not establish that the Agency discriminated against her as alleged. The Agency issued a final order implementing the AJ's decision. Complainant subsequently filed an appeal.
In Complainant v. Department of Agriculture, EEOC Appeal No. 0120093668 (August 29, 2012), the Commission found that, because the Agency did not comply with its request to submit the entire record, it was unable to determine whether the AJ properly issued a decision without a hearing. As a sanction for the Agency's failure to comply, the Commission remanded the complaint for a hearing and required the Agency to pay Complainant's attorney's fees and costs for the entire hearing process.
The AJ held a hearing on August 4, 2014. Prior to the conclusion of the hearing, the AJ declined to sanction the Agency for failing to retain the interview notes. Hearing Transcript (Hr'g Tr.), at 181-87. Although Complainant had requested a sanction, the AJ found that a sanction was not appropriate for the following reasons: (1) the selecting officials were operating from a good faith belief that the interview notes did not have to be retained; (2) the Agency was taking steps to ensure the preservation of such records in the future; and (3) the prejudice to Complainant was small because the selecting officials drafted contemporaneous justification memoranda memorializing what they relied upon at the time of the selections and because the selecting officials were subject to full cross-examination about the interview process, the interview questions, and the comparable qualifications of the applicants. The AJ concluded that there was no evidence suggesting that the interview notes contained information adverse to the Agency.
On September 4, 2014, the AJ issued a decision finding no discrimination on the bases of race or reprisal. Assuming, arguendo, that Complainant established a prima facie case, the AJ found that the selecting officials articulated legitimate, nondiscriminatory reasons for choosing SE1 and SE2. Regarding SE1, the AJ found that SO1 cited his experience writing payroll/loan applications using COBOL and his completion of a bachelor's degree in business information systems in May 2007. Regarding SE2, the AJ found that SO2 cited his experience writing financial applications using COBOL, his 30 years of experience in the field of computers (as an analyst, programmer, and engineer), his degrees in computer science and mathematics, and his experience teaching computer science and mathematics in higher education.
Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. Specifically, the AJ found that Complainant did not demonstrate that her qualifications were so "plainly superior" to those of SE1 and SE2 as to compel a finding of pretext.
Regarding Complainant's qualifications, the AJ found that the record demonstrated the following: (a) she had a bachelor's degree, with a major in computer science and a minor in business administration; (b) she had knowledge of JCL from her education and her job, and knowledge of payroll applications from her job; and (c) she had not written applications using COBOL, but was familiar with COBOL from her education and her job.
Regarding SE1's qualifications, the AJ found that he was at least as equally qualified as Complainant. Specifically, the AJ found that SE1's resume demonstrated that he had experience writing applications, including using COBOL, as well as other computer and data management experience. Although SE1 did not have any JCL experience, the AJ credited SO1's testimony that writing applications using COBOL was a significant part of the position, SE1 during his interview described his experience writing payroll/loan applications using COBOL, and the primary reason she selected SE1 over Complainant was that experience.
Although Complainant argued that SE1 did not qualify for the position because he did not have a bachelor's degree at the time of his application and did not have the requisite specialized experience, the AJ noted that it was OPM, and not the Agency, that was responsible for qualifying the candidates. The AJ found that, while there was evidence that SE1 did not have a bachelor's degree at the time of his application, there was no evidence that SE1 did not have the requisite specialized experience. The AJ emphasized that there was no evidence that OPM, either independently or in conspiracy with the Agency, intentionally qualified SE1 for the position as a means of discriminating against Complainant; if OPM incorrectly qualified SE1 for the position, there was no evidence that it was anything other than a mistake. The AJ found that even if SE1 did not have a bachelor's degree at the time of his selection, there was no evidence that SO1's belief that he had graduated was a pretext for discrimination. The AJ noted that SE1 had over 206 credit hours in May 2007, suggesting that if he had not graduated he was very close to graduating.
Regarding SE2's qualifications, the AJ found that he was substantially more qualified than Complainant. Specifically, the AJ found that SE2 had substantially more experience than Complainant in computer science at every level, including writing applications using COBOL. In addition, the AJ found that SE2 had been an adjunct professor at two universities teaching computer science and mathematics, including writing applications using COBOL.
Also on September 4, 2014, the AJ issued a "Ruling and Order on Attorney Fee Petition," awarding Complainant $13,175.82 in attorney's fees and $1,494.55 in costs.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency discriminated against her as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in finding no race or reprisal discrimination. Among other things, Complainant argues that the AJ should have sanctioned the Agency for failing to retain the interview notes. In addition, Complainant argues that the AJ was "disgruntled" and biased against her because the Commission had remanded her case back to him for a hearing. Moreover, Complainant argues that she was "plainly superior" to the selectees. Regarding her own qualifications, Complainant asserts that she had a higher rating on the certificate and she had written applications using COBOL (contrary to the AJ's finding). Regarding SE1's qualifications, Complainant argues that his resume did not show experience writing payroll/loan applications using COBOL and there was no evidence to support SO1's testimony that he mentioned the experience in his interview as the Agency did not retain the interview notes. In addition, Complainant reiterates his previous argument about how SE1 was not qualified for the position due to his lack of a bachelor's degree and lack of specialized experience. Regarding SE2's qualifications, Complainant argues that his resume did not show experience writing payroll/loan applications using COBOL and he did not submit a transcript showing the several degrees he supposedly possessed.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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), Ch. 9, � VI.B (Aug. 5, 2015).
ANALYSIS AND FINDINGS
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence").
First, we find that the AJ did not abuse his discretion by not sanctioning the Agency for failing to retain the interview notes. We agree with the AJ's detailed explanation as described above about why a sanction was not warranted in this case.
Second, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of race or reprisal in connection with the non-selection. Specifically, other than Complainant's bare assertions, we find no evidence that the AJ was "disgruntled" or biased. In addition, we agree with the AJ that Complainant did not show that her qualifications were "plainly superior" to those of the selectees. Although OPM gave Complainant a higher rating than the selectees on the certificate (104 points versus 102 points), we find that a two-point differential is minimal. ROI, at 89, 93, 96. Although Complainant may have had experience writing applications using COBOL (in college), there is no indication that Complainant communicated that experience to the selecting officials via her resume or during her interviews. Hr'g Tr., at 55, 78, 83. Although SE1's resume only shows general experience writing applications using COBOL and not specific experience related to payroll/loan applications, we note that the AJ credited SO1's testimony that he discussed the payroll/loan applications during his interview. ROI, at 146; Hr'g Tr., at 132, 144-45. We accept the AJ's credibility determination, as Complainant has not pointed to any objective documentary evidence contradicting SO1's testimony, nor has she shown that SO1's testimony so lacks in credibility that a reasonable fact finder would not credit it. Although Complainant again argues that SE1 was not qualified for the position, we agree with the AJ's detailed explanation as described above. Although SE2's resume does not show experience writing payroll/loan applications using COBOL, we emphasize that SO2 selected SE2 for his experience writing other financial applications using COBOL and his resume reflects that experience. ROI, at 154-55, 164. Although Complainant asserts otherwise, we note that the record contains a transcript showing that SE2 had obtained a bachelor's degree and a master's degree.3 Id. at 156.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's decision.
CONCLUSION
The AJ did not abuse his discretion by not sanctioning the Agency for failing to retain the interview notes. Substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of race and reprisal in connection with a non-selection. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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. 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
__3/10/17________________
Date
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.
2 SO1 had initially selected another candidate (Caucasian), but that candidate declined the position.
3 Complainant states on appeal that the transcript was from a community college. Our review of the record reflects that the transcript was actually from a state university, but a copy was sent to a community college at some point.
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