0120172660
08-15-2018
Jeramy C.,1 Complainant, v. Sheila Crowley, Acting Director, Peace Corps, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeramy C.,1
Complainant,
v.
Sheila Crowley,
Acting Director,
Peace Corps,
Agency.
Appeal No. 0120172660
Hearing No. 570-2014-01085X
Agency No. PC-14-01
DECISION
Complainant through his attorney filed an appeal on July 26, 2017, after his attorney did not receive the Agency's May 25, 2017, final order fully implementing the decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning his 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.2 The appeal is accepted pursuant to 29 C.F.R. � 1614.403(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency.
The Complainant filed a complaint dated December 23, 2013, alleging that the Agency discriminated against him based on his sex (male) and age (64) when he was not hired for the position of Program Specialist Public Health in the Office of Global Health and HIV in Washington, DC, advertised under vacancy announcement DP13-A0130-KC. The Agency accepted applications for the job for two weeks, ending on August 1, 2013.
After investigating the complaint, the Agency provided Complainant with a copy of the report thereof and a notice of right to request a hearing before an AJ. Complainant requested a hearing. The Agency filed a motion for summary judgment which Complainant opposed. The AJ granted the motion and without a hearing found no discrimination. The Agency fully implanted the AJ's decision in a final order. The instant appeal followed.
The duties of the Program Specialist Public Health are to measure and improve program operations and results; provide interpretations and opinions and make decisions on programs or policies; plan and manage projects from concept through implementation, including identifying requirements, developing technical approaches, coordinating project costs, human resources, and completion timeframes; developing or facilitating courses and training programs; and serve as a technical resource and advisor. This work included supporting field posts, and dealing with issues of water sanitation, hygiene, and non-communicable diseases. Strong technical expertise and communication skills were important. The position did not deal with HIV issues - the people working on HIV were dedicated exclusively to HIV.
In his job application, Complainant wrote that he was a tutor from January 2010, onward. Before that, from most recent to backward, he had a series of jobs of short duration - consultant for two months ending in December 2009 researching and presenting international environmental health literature and how it affects Mozambique, math teacher for a year ending in August 2007 in a public school, Spanish teacher for the Spring semester in a public school in another county ending in July 2006, public health advisor with the U.S. Centers for Disease Control (CDC) on HIV matters for five months ending in November 2005, Health Specialist with the Peace Corps for five months ending in January 2005, and a Community Health Planner for a university for five months ending in July 2003. Before that, he worked in jobs for longer durations, from most recent backward - pro bono President/Chief Executive Officer of International Community Action Now in Bolivia for one year seven months developing proposals for small businesses and communities to address farming, road maintenance, health, water, sanitation, and education needs for Bolivia's indigent population; Country Director, Bolivia for Project Concern International for 13 months ending in January 2001, Program Manager with the New Mexico Department of Health for over four years ending in December 1999, Assistant Country Director for CARE for 10 years serving in three different countries working on health issues such as nutrition, water and sanitation, and disease control. At CARE, Complainant managed staff ranging from 45 to 95 people and multimillion dollar budgets. He earned a Bachelor of Science in Chemistry & Zoology in 1972, and a Master of Science in Human Nutrition in 1978 from the University of Georgia. He earned a Master of Public Health, International Health Planning, Management and Evaluation in 1982 from Johns Hopkins University, and when he applied for the job was in the process of earning a Ph.D. in Business Administration at Northcentral University in Arizona.
The selectee's (female, age 29) application showed that she was a global health and education professional with eight years of experience in global health, including three years of field experience coordinating HIV and health education programs in Tanzania and Mozambique. From most recent backward, the selectee was a consultant with The World Bank from January 2013 onward providing technical support to the school health team; an HIV Treatment and Care Intern with the USAID/Global Health Fellows Program for eight months ending in November 2012, where she developed a costing plan for HIV treatment interventions in a multi-million dollar combination prevention trial in Tanzania, including drug regimens and lab testing, and reviewed multiple program design documents; an AP Biology Teacher at a Polytechnic School for three months ending in May 2012; a Peace Corps Science Education Volunteer for two years four months ending in December 2011, working with health education, an HIV Treatment Educator with AIDS Project Los Angeles for one year seven months ending in April 2009, a Teaching Assistant with Stanford University for four months ending in December 2006; a Program Coordinator for Support for International Change for eight months in Tanzania ending in September 2005, and an HIV Prevention Educator for Support for International Change in Tanzania for five months ending in September 2004. She earned a Bachelor of Arts in Human Biology and African Studies in 2006 and a Master of Arts in International Education Policy in 2007 at Stanford University.
Both Complainant and the selectee applied for the position, were scored as qualified, and were referred for interview to a panel of three. The panel members used interview question sheets with the same questions for all the candidates, and each gave numeric response scores where applicable and took notes thereon.
For the first round of interviews, 11 candidates were interviewed. Their interview scores ranged from 39 to 91, and three scored 84 and higher. Complainant ranked seventh, at 68.5. The three with the highest interview scores were referred for a second interview by a panel of three that had one different member. As part of the second interview, candidates had to do a project.
Interview Panel Member 1 (female, age 51 - Director, Office of Global Health and HIV), indicated the following. Complainant gave perfunctory answers in response to questions which lacked innovation and variety, making him appear disinterested and unenthusiastic - something for which he stood out. For example, in reference to the question 6 on the interview question sheets on what his current or former supervisor would say is the area he most needs improvement, he responded along the lines of his students were his supervisors and they would say he was not fun. His interview responses did not substantiate qualifications in international public health that were represented in his paper application. For example, he provided the same single example about empowering women to multiple questions, not taking the opportunity to articulate his experience in international public health. Complainant did not take the interview seriously, and she did not think he would make a good team fit. By contrast, the selectee clearly articulated innovative and thoughtful responses to all questions.
Panel Member 2 (female, age 65) stated the following. While Complainant seemed to have a lot of detail in technical areas, his attitude gave the feeling that he would not be able to support the field, which was important. For example, in response to the supervisor question, Complainant said a current student would say he doesn't have enough fun, which was a strange response, and he was very nervous during the interview. She was concerned that Complainant would not collaborate well with the team nor provide the type of support the field expected. The selectee's interview was impressive, showing her technical expertise and ability to collaborate with a team.
Panel Member 3 (female, age 33) stated as follows. After reviewing Complainant's application with his water and sanitation experience, she was excited to speak with him because it was a necessary part of the position. In his interview, it was hard to get responsive answers to questions as he veered off track and got distracted, and it was challenging for him to articulate his thoughts. His answer to the supervisor question was that a current student would say he did not know how to have fun, which was an odd example with all his experience to pull from. His years of experience did not come through during the interview. She worried that Complainant would not collaborate well with the team which is what they were looking for, as well as bringing a complementary skill set. The selectee excelled during her interview.
The AJ found as follows. Given the duties of the position, which involved working with others in a coordinated fashion to provide management and strategic guidance for the Agency's health activities around the globe and providing policy guidance, general supervision, direction and coordination on them, one of the best ways to determine the best qualified candidate was to interview them to allow an assessment of their knowledge, temperament, and ability to think and reason on their feet in response to oral questions. Panel Member 2's observation that Complainant "seemed quite nervous" in his interview may have been attributable to his being asked interview questions that were different than the interview questions he obtained in advance in response to a Freedom of Information Act (FOIA) request. The AJ found that Complainant failed to prove age and sex discrimination.
The Agency's final order fully implemented the AJ's decision.
On appeal, Complainant argues that there are genuine issues of material fact - whether his experience was plainly supervisor to the selectee's, if the selectee performed better than him in the interview, and whether the interview panel members used subjective criteria in assessing his interview performance of candidates as a pretext for discrimination.
In opposition to Complainant's appeal, the Agency argues that there are no genuine issues of material fact and Complainant did not prove discrimination.
ANALYIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. 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. (as revised, August 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).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, Complainant has failed to establish such a dispute.
An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Further, deference to an employer's use of subjective criteria increases when upper level, supervisory or professional promotions are involved. Hayes v. Defense Logistics Agency, EEOC Appeal No. 01862115 (July 21, 1987), Davis v. Board of School Comm'rs. of Mobil County, 600 F.2d 470 (5th Cir. 1979), aff'd on this point, 616 F.2d 893 (5th Cir. 1980).
Complainant's contention that he had more relevant experience and education as it relates to the duties of the position is supported by the program the Agency ran to automatically evaluate and rate his application, with a quality review by the Agency's Human Resources Office before candidate ratings became final. Based on their applications, Human Resources rated Complainant highly qualified and the selectee well qualified. Once applicants were deemed qualified by Human Resources, the interview panel was free to make its own assessments on who were the highest qualified candidates.
As implied by the AJ, an excellent application does not mean that the Agency's assessment that Complainant was less qualified than the selectee was based on his sex and age. Rather, as found by the AJ, given the nature of the job, it made sense to interview the candidates who made the application cut to assess their knowledge, temperament, and ability to think and reason on their feet. In proving discrimination, the question is not whether Complainant performed the same or better on his interview than the selectee, the question is the panel's perception.
The panel found that the selectee did better on the interview than Complainant, and the majority thereof (two members) found his interview responses were so bad that it was not a close call to eliminate him from further consideration. These two panel members indicated, as applicable, that in his interview Complainant came off as disinterested, his responses veered off track, it was challenging for him to articulate his thoughts, and it did not reflect the qualifications in his application. All the panel members found that Complainant's answer to the question of what a current or former supervisor would say is the area he most needs improvement to be way off - one stated that it evidenced he was disinterested and unenthusiastic, another that it was strange, and the third that it was odd given all the experience he had to draw upon. All the panel members stated that the interview made them concerned that Complainant would not collaborate well with the team, i.e., good team fit. Some of these assessments were supported with specific examples. By contrast, all three panel members were favorably impressed by with the selectee's interview. While there is no question that the panel members relied on some subjective factors and their assessments were subjective, given the nature of the job this would be hard to avoid. Absent evidence of discrimination, we defer to their judgments. Complainant failed to prove discrimination.
The Agency's final order is AFFIRMED.
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.
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
August 15, 2018
__________________
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 The certificate of "service" accompanying the Agency's final order shows that it was not mailed to Complainant's attorney, as required. The Statement of Rights in the final order gave the incorrect address for filing an appeal with EEOC, Office of Federal Operations. Specifically, the Post Office Box is 77960, not 7796.
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