Jaqueline L.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Apr 19, 2018

0120161986 (E.E.O.C. Apr. 19, 2018)

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

Jaqueline L.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120161986

Agency No. FBI-2014-00121

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 May 2, 2016, 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., 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency.

On July 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Native American), national origin (Italian), sex (female),
religion (Lutheran/Catholic), disability, age (over 40), and in reprisal for prior protected EEO
activity when from April 29, 2014, through September 21, 2014, Complainant was not selected
for the following positions:

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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1. IT Specialist (Forensic Examiner), GS-7/9 (EX), job announcement number: FO-
2014-0045;
2. IT Specialist (Forensic Examiner), GS-11/12 (EX), job announcement number:
FO-2014-0046;
3. Community Outreach Specialist, GS-9/11 (EX), job announcement number: PD-
2014-0003;
4. IT Specialist, GS-11 (FBI), job announcement number: 22-2014-0018;
5. Management and Program Analyst, GS-7/9 (EX), job announcement number HQ-
2014-0003;
6. Management and Program Analyst, GS-11/12 (EX), job announcement number
HQ-2014-0004;
7. Supervisory Physical Scientist, GS-15 (Unit Chief) (FBI), job announcement
number: 07-2014-0017; and
8. Supervisory Physical Scientist, GS-15 (Unit Chief) (EX), job announcement
number 07-2014-0018.

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). On May 2, 2016, the Agency issued a final
decision 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.

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

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Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

Complainant claimed she has “been discriminated against by being subjected to long term
unemployment.” Complainant stated she applied for several forensic examiner and physical
scientist positions with the FBI in 2014. She stated that due to her “background in the natural
sciences,” she felt “qualified for an entry level position” with the FBI. Complainant stated she
filled out her applications online and therefore did not have copies of her submissions.

The Agency’s Human Resources officials described the blind automated applications process
they used to screen applicants. Supervisory Human Resources Specialist (SHRS) A stated she
did not know Complainant at the time of her application. SHRS A stated at the time of
Complainant’s applications, the Agency used “an automated staffing rating and ranking system”
that numerically ranks the applicants who meet the minimum qualifications for the position. She
stated that her employees then “review applications received through the automated system for
minimum qualifications before referring candidates to the hiring manager for consideration on a
Best-Qualified List.” SHRS A stated her unit was responsible for advertising for three of the
vacancies Complainant applied for in 2014 (FO-2014-0045, FO-2014-0046, and PD-2014-0003).

SHRS A stated she was the point of contact for FO-2014-0045 and her coworker was the point of
contact for FO-2014-0046. She explained the two IT Specialist (Forensic Examiner) vacancy
announcements were master postings for 21 separate locations. SHRS A said that she conducted
a search and determined that Complainant’s name did not appear as an applicant for these
positions and her name does not appear on any of the Certificates of Eligibles for the locations
that eventually filled the positions. SHRS A also stated that Complainant’s name did not appear
on the list of applicants who applied for the Community Outreach Specialist vacancy and it does
not appear on the Certificate of Eligibles for PD-2014-0003. SHRS A concluded that
Complainant did not apply to the three vacancy announcements handled by her unit because her
name did not appear on the applicant list report (which is a summary of everyone who applied)
for those vacancy announcements (claims 1, 2, and 3).

HRS B stated that VAN 22-3014-0018 was open to only current FBI employees. Thus, she
stated that Complainant’s name did not appear on the list of applicants.

SHRS C explained her unit was responsible for advertising VANs HQ-2014-0003 for the
Management and Program Analyst, GS-7/9 and HQ-2014-0004 for the Management and
Program Analyst, GS-11/12 positions. SHRS C noted that those two vacancies were considered
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master postings. Selecting Officials from at least 15 different FBI divisions were able to pull
from the master Certificate of Eligibles’ List and make their selections. She stated it was
incumbent upon applicants for those positions to select a specific FBI division at the time they
submitted an application.

HRS D stated that regarding VANs 07-2014-0017, Supervisory Physical Scientist, GS-15 (Unit
Chief) and 07-2014-0018, Supervisory Physical Scientist, GS-15 (Unit Chief), she queried
applicable records and could not locate a record for Complainant. HRS C stated that position 07-
2014-0017 was open for applications solely from current FBI employees. Additionally, HRS C
said that all physical scientist positions have an education requirement that must be met. HRS C
said that if Complainant did not list a qualifying Bachelor’s degree in physical science, biology,
chemistry, engineering, or mathematics that includes 24 hours in physical science and/or related
engineering science such as mechanics, dynamics, properties of materials, and electronics, her
application would have been automatically discontinued.

Further, the Agency noted that each position announcement contained specific instructions for
verifying prerequisites for a given position. For example, the Agency stated that all applicants
must verify completion of college transcripts or lists of college courses by the closing date of the
vacancy announcement to satisfy the requisite educational requirements for each position.

The Agency noted it used a blind automated application process to screen applicants. The
Agency stated the system deleted incomplete or under-qualified applications, and all of the
positions Complainant applied for had detailed requirements in order to qualify for further
consideration. The Agency claimed the record showed that Complainant’s name did not register
as an applicant who successfully completed any applications, most likely because she did not
meet the minimum qualifications for the positions at issue. The Agency explained these
qualifications included being a current FBI employee, providing a high-grade point average,
college course descriptions or transcripts, or holding advanced training in certain specified areas.
The Agency stated that if Complainant did not possess these qualifications or failed to type them
into the system, she would not be selected. The Agency concluded Complainant was not a
current FBI employee at the time of the applications and did not qualify for any of the positions
at issue.

We note that on appeal Complainant does not challenge the Agency’s definition of her
complaint. Upon review, we find Complainant has not shown that she applied for or was
qualified for the vacancies at issue. Moreover, Complainant failed to prove, by a preponderance
of the evidence, that the Agency’s actions were a pretext for discrimination.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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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

April 19, 2018
Date