0120172999
08-15-2018
Lacy R.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lacy R.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120172999
Hearing No. 531201400055X
Agency No. HHSCMS00842013
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 August 23, 2017, final order concerning his equal employment opportunity (EEO) complaint. He alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Insurance Specialist/Projects Leader, GS-14, at the Agency's Centers for Medicare and Medicaid Services facility in Baltimore, Maryland.
On March 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin ("Latino-American"), sex (male), age (51), and reprisal for prior protected EEO activity under Title VII, when:
1. On December 12, 2012, Complainant was not selected for the position of Director, Division of Beneficiary Healthcare Improvement and Safety ("BHIS"), Quality Improvement Group ("QIG"), Center for Clinical Standards and Quality ("CCSQ"); and
2. In February of 2012, Agency management officials breached Complainant's confidentiality when discussing Complainant's current EEO activity with the Director, BHIS.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a two-day hearing on December 10-11, 2014.
The evidence showed Complainant is Caucasian man, age 51, at the time of the non-selection. He identified his national origin as Latino American and as "Hispanic/Brazilian." Complainant had prior EEO activity in 2009, when he filed a sexual harassment claim against his former female supervisor. The complaint was settled. For various reasons, including as a result of a reorganization and the settlement of his complaint, Complainant was reassigned to the front office and reported directly to the named responsible management official ("RMO1") (Caucasian, White, born 1958, male). His second level supervisor was RMO2 (African-American, Black, age 56, female).
Claim 1 - Non-Selection
In September of 2012, the Agency announced a vacancy, for the position of Director, Division of Beneficiary Healthcare Improvement and Safety ("BHIS"), which was advertised under Vacancy Announcement ("VA") number Centers for Medicare and Medicaid Services (CMS) CMS-CCSQ-MP-12-750025 (GS-0107-15).
Complainant applied for the position. Sixteen applicants were identified as qualified by Human Resources. Eight were recommended for in-person interviews.
RMO1 and RMO2 implemented a two-phrase interview process. The first phase was for a panel to select and recommend applicants based on a standard interview process that was applied to all candidates. The second phase was for the interview with his immediate and second level supervisors. The panel handled both the review of the applications and the in-person interviews.
During the in-person interviews, the panel used a binder given by RMO1 for each panel member. The binder contained information on the evaluation process, scoring sheets to review and to rank the resumes, the introductory remarks, the five questions to be asked by each interviewer, and the interview note's page with ranking elements for each question. The testimony was that the panel evaluated candidates based on the five competencies and scored them on a three-point scale.
The interview panel consisted of four individuals, three of whom were Caucasian, and two of whom were male. The four panelists were ages 38, 47, 53 and 49. Complainant was age 51. The panelists knew Complainant prior to the interview.
Complainant was determined to be eligible for the position. Complainant was interviewed for the first phase. Complainant acknowledged that the interview did not go well. He testified that he felt rushed and that the panel did not seem interested in hearing what Complainant had to say.
The interviews lasted thirty minutes for each candidate.
There was testimony that the panel scored the selectee with 49 points and scored Complainant with 41 points. The panel members consistently testified that Complainant failed to provide specific examples of his work experience. None of the panel members recommended Complainant as the top candidate.
Based on the recommendation of the panel members, RMO1 and RMO2 interviewed the final three candidates. Complainant was not among them. A younger, African-American woman was eventually selected. The testimony was that she was rated highest by the panel members and was one of the two candidates recommended for selection.
The selecting official testified that she chose the candidate recommended by the panel with the highest score by the panel.
Complainant testified that he was far more qualified than the selectee and had more years of relevant service as a GS-14. He testified that he believed that the Agency pre-selected the selectee and that the Agency delayed announcing the position to permit the eventual selectee enough time in grade to be considered for the position. He also testified that there was animosity directed at him because he had filed a complaint against his former supervisor and she was a friend of the decision makers. Complainant and one other candidate testified that it was difficult for Hispanic employees to advance at the Agency.
Claim 2 - Breach of Confidentiality
On January 7, 2013, a collateral duty EEO Counselor sent RMO1 an email which identified Complainant's allegations of discrimination and his request for a permanent transfer to another CMS Component Center. RMO1 testified that, because Complainant had requested an immediate reassignment to resolve the matter and due to staff shortages, RMO1 forwarded the email to Complainant's supervisor to notify her of the potential need for a back-up plan in case Complainant was moved from her Division. There was no evidence that any adverse action was taken against Complainant as a result of the communication.
The Decision
The AJ issued the decision on July 12, 2017. The AJ found that Complainant failed to establish a prima facie case of discrimination on any of the alleged bases regarding the non-selection "since he fails to provide evidence that he was the 'plainly superior candidate.'". The AJ reasoned that "there is no evidence that the Agency's decision was in any way motivated by Complainant's sex, race or national origin." Specifically, the AJ found that there was no evidence that the Agency displayed any discriminatory animus when the Agency implemented a two-phase selection process and by going through panel team interviews. He found that the candidates were asked the same questions and scored points based on the same criteria. The AJ found that the panel recommended two final candidates and the selection was made from between those two candidates. The AJ stated, "[t]hus, Complainant has failed to establish a prima facie case based on sex, race, or national origin." The AJ then found that he failed to establish an age case because he relied upon his subjective view that due to his seniority, he was more qualified than the selected candidate. The AJ concluded that Complainant failed to establish a prima facie case for reprisal as the selection was not within close proximity of his prior EEO activity that occurred three years before.
The AJ next found that the Agency articulated legitimate non-discriminatory reasons regarding Complainant's claim of reprisal and Complainant has failed to show that the Agency's legitimate non-discriminatory reasons were just a pretext for discrimination regarding his prior EEO activity.
Regarding the claim of breach of confidential information, the AJ found that the breach was a result of a strictly negligent activity. There's no evidence of any discriminatory animus resulting in harm toward Complainant. The AJ entered judgement in favor of the Agency.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ failed to consider conflicting evidence that he says shows that he was asked five questions, but the person selected was asked only one question and had been pre-selected for the position. He contends that the selection process was flawed. He asserts that the record is void as to how RMO1 created the criteria and states that he was constantly interrupted during the interview.
In response, the Agency maintains that the AJ's Order Entering Judgement is supported by the record and should be affirmed.
ANALYSIS AND FINDINGS
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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Section 717 of Title VII requires that federal agencies make all personnel actions free of race and sex discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race, color or sex"). Reprisal is also unlawful under Title VII. Similarly, Section 633 (a) of the ADEA requires federal agencies to make their work places free of discrimination.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
The AJ determined that he failed to establish his prima facie claims. We disagree. Complainant established that he was qualified, and a person not of his protected group was selected. However, the fact that he established a prima facie case is not dispositive.
In this case, the AJ found that the Agency established legitimate, non-discriminatory reasons for its actions. Those reasons were that the selecting official selected the individual recommended by the panel and who had received a higher score.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant does not directly dispute the Agency's stated reason. Instead, Complainant argues that the process was flawed and the panel could not have legitimately rated the selectee higher because the selectee testified that she recalled one answer. He offered evidence that she was only asked one question and therefore she could not have legitimately received a higher score. The record does not show that she said that she was asked only one question. The selectee testified that she recalled one question that she was asked. Further, the testimony from the panel was that all candidates were asked the same five questions.
In addition, the AJ found (and the record shows) that the length of the interview was the same for all of the candidates and all were subjected to the same process. There was also testimony that there had not been any interference by the selecting officials. The record did not show that Complainant's prior EEO activity was otherwise the reason for the selection.
Although Complainant asserted that he was subjected to disparate treatment based on his race, color, sex, age, and prior EEO activity, the AJ found that he failed to prove by a preponderance of the evidence that the alleged incidents occurred as he stated or that the incidents occurred because of the protected bases alleged in his complaint. For these reasons, we find no reason to disturb the AJ's decision.
We further find that the AJ's decision on the facts is supported by the record before us.2
CONCLUSION
Accordingly, we AFFIRM the Final Order, finding that Complainant failed to prove by a preponderance of the law that he was discriminated against as he alleged.
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 tends 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 We correct the underlying AJ decision to note the appropriate citation of the law that pertains to federal sector complaints. We therefore modify the underlying AJ decision that was adopted by the Agency to refer to Section 717 of title VII (and not Section 703) and Section 633(a) regarding the ADEA claims. We find that the Agency's Final Order, based on the AJ's decision, is otherwise properly supported by the record.
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