Madison F.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120171238 (E.E.O.C. Dec. 18, 2018)

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

Madison F.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120171238

Agency No. FBI-2016-00033

DECISION

On February 16, 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
January 9, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information
Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency properly dismissed one issue and two bases on
procedural grounds; (2) whether the Commission has jurisdiction over Complainant’s sexual
orientation discrimination claims; and (3) whether the preponderance of the evidence in the record
establishes that Complainant was subjected to discrimination based on race, color, national origin,
sex, religion, disability, genetic information, and/or reprisal when she was not selected for two
vacant Personnel Security Specialist positions at the Agency.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant was a 37-year-old applicant for
various positions with the Agency. Complainant is a White Christian heterosexual female of
Caucasian and Native American national origin. Complainant stated that she has both mental and
physical disabilities. According to Complainant, some of her disabilities are connected to her
military service, and she has been rated as 50 percent disabled by the Department of Veterans
Affairs.

In October 2014, Complainant timely applied for a GS-0080-9 Personnel Security Specialist
position in the Criminal Investigative Division (CID) in Washington, D.C., which was advertised
under vacancy announcement number 06-2015-0001. According to the record, Complainant was
one of 124 applicants on the best qualified list forwarded to the selecting official, a Supervisory
Security Specialist (S1), for consideration. S1 stated that he offered interviews to the most
qualified candidates on the list. According to S1, he did not offer an interview to Complainant
because her application indicated that she did not have relevant Security Assistant work. S1
averred that the selectee (C1), who was a veteran, had worked as a contractor for the Agency’s
Security Division, and had relevant experience adjudicating security and background
investigations.

In February 2015, Complainant timely applied for a GS-0080-9/11 Personnel Security Specialist
position in the Boston, Massachusetts Field Office, which was advertised under vacancy
announcement number BS-2015-0030. According to a Human Resources Specialist (HR1), two
internal applicants were deemed best qualified for the GS-9 level, no internal applicants were
deemed best qualified for the GS-11 level, 26 external veteran’s preference candidates were
deemed best qualified for the GS-9 level, and six external veteran’s preference candidates were
deemed best qualified for the GS-11 level. The applications of these candidates were forwarded to
the selecting official, a Supervisory Administrative Specialist (S2). According to the record,
Complainant’s application was forwarded as one of the 26 external candidates for consideration at
the GS-9 level. S2 stated that he reviewed these applications and decided to first consider the
internal candidates because they had already completed the required pre-employment security
background investigation and could start working more quickly than the external candidates. S2
averred that the selectee (C2) already worked as a Security Assistant and that many of his duties
were similar to those of the Personnel Security Specialist position. According to his application
materials, C2 was a veteran.

According to Complainant, she should have been interviewed and selected for these Personnel
Security Specialist positions because she has two degrees and because she is a disabled veteran.
Complainant alleged that she was not selected for an interview because of her race, her color, her
sex and orientation, her age, her national origin, her disabilities, her parental status, her religion,
and her genetic information. Complainant averred that her medical discharge from the military and
her lack of job experience made her a less desirable candidate for the positions in question.

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On December 15, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (White), color (White), national origin
(Caucasian/Native American), sex (female, heterosexual), religion (Christian), disability (physical
and mental), age (37), genetic information (unspecified) and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 19732 when:

1. In November 2011, she was not selected for a Special Agent position;

2. In December 2014, she was not selected for the GS-0080-9 Personnel Security
Specialist position advertised under vacancy announcement number 06-2015-0001;
and

3. On July 28, 2015, she was not selected for the GS-0080-9/11 Personnel Security
Specialist position advertised under vacancy announcement number BS-2015-
0030.

The Agency dismissed claim 1 for untimely EEO Counselor contact. The Agency dismissed age
as a basis because Complainant was 37 years old and therefore failed to state a claim of age
discrimination. The Agency also dismissed reprisal as a basis because there was no evidence in
the record that Complainant had engaged in protected EEO activity.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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. The Agency’s final decision stated that its
decision based on sexual orientation was not appealable to the Commission because it was
prohibited by Agency regulations rather than by federal EEO statute. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency should not have dismissed her claim about the
2011 nonselection for the Special Agent position for untimely EEO Counselor contact because she
has not had access to a lawyer to advise her about her rights with respect to the EEO process.
Complainant argues that she was well qualified for all the positions for which she applied because
she has a Bachelor’s Degree in chemistry and a Master of Business Administration. According to
Complainant, she has been discriminated against because of her disabilities and the other alleged
bases.

The Agency offers no contentions in response to Complainant’s appeal.

2 Complainant also alleged parental status as a basis for her complaint. The Commission does not
have jurisdiction over claims of parental status discrimination.
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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 Chap. 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”).

Procedural Dismissals

The Agency dismissed claim 1 for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R.
§ 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in § 1614.105, § 1614.106 and
§ 1614.204(c), unless the Agency extends the time limits in accordance with § 1614.604(c). EEOC
Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with
an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29
C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the
complainant can establish that she was not aware of the time limit, that she did not know and
reasonably should not have known that the discriminatory matter or personnel action occurred,
that despite due diligence she was prevented by circumstances beyond her control from contacting
the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency
or Commission. Complainant learned about the nonselection in question in November 2011, but
she did not initiate contact with an EEO Counselor until 2015. According to Complainant, in
November 2011, she was not aware that she could file an EEO complaint regarding her
nonselection for the Special Agent position. However, a review of the Commission’s appellate
records indicates that Complainant filed an EEO complaint with another agency in December 2012
regarding three nonselections that occurred between August and December 2012. Therefore, we
find that, even if Complainant was not aware of the time limit in November 2011, she became
aware of the relevant time limit sometime in 2012. Accordingly, Complainant’s 2015 EEO
Counselor contact regarding this matter was untimely, she has not provided a sufficient reason for
the delay, and we AFFIRM the dismissal of this claim.

The Agency dismissed age as a basis for Complainant’s complaint. The ADEA only protects
applicants and employees who are at least 40 years old. Complainant, who was 37 years old at the
time of events giving rise to her complaint, therefore failed to state a claim of age discrimination
under the ADEA. Accordingly, we AFFIRM the dismissal of age as a basis for Complainant’s
complaint.

Finally, the Agency dismissed reprisal as a basis for Complainant’s complaint, reasoning that there
was no evidence that Complainant had engaged in prior protected activity.
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However, Complainant included an email from the Agency with her formal complaint, which was
a response to Complainant’s request for reasonable accommodation as part of the application
process. Requesting a reasonable accommodation constitutes protected EEO activity. Therefore,
the Agency erred in dismissing reprisal as a basis. However, we find that the record is sufficiently
developed to analyze Complainant’s reprisal claims.3

Disparate Treatment

Complainant alleged that she was subjected to discrimination when she was not selected for two
Personnel Security Specialist positions. To prevail in a disparate treatment claim such as this,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however,
since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No.
05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by
showing that her qualifications are “plainly superior” to those of the selectee. See Patterson v.
Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996).

The Agency’s legitimate, nondiscriminatory reason for selecting C1 for the first Personnel Security
Specialist vacancy was that he had relevant job experience from working as a contractor for the
Agency, whereas Complainant’s application stated that she did not have relevant Security
Assistant experience. Although Complainant contends that her degrees qualified her for the
position, this does not establish that the Agency’s proffered reason is pretextual, and we find that
the preponderance of the evidence in the record does not otherwise establish pretext for unlawful
discrimination.

3 We note that the Commission has jurisdiction over the portion of Complainant’s sex
discrimination claim alleging sexual orientation discrimination, notwithstanding the Agency’s
assertion to the contrary. See Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080
(July 15, 2015). However, as with reprisal, we find that the record is sufficiently developed to
analyze Complainant’s claims based on sexual orientation.

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The Agency has also provided legitimate, nondiscriminatory reasons for selecting C2. Specifically,
S2 selected a candidate from the list of internal candidates because an internal candidate would
have already completed their background investigation and would be able to start working more
quickly, and C2 had relevant experience from working for the Agency as a Security Assistant.
Here, Complainant has failed to establish by the preponderance of the evidence in the record that
these legitimate, nondiscriminatory reasons are a pretext designed to mask discriminatory or
retaliatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination
because the preponderance of the evidence in the record does not establish that discrimination
occurred.

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

December 18, 2018
Date