Margot Y.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120172987 (E.E.O.C. Oct. 25, 2018)

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

Margot Y.,1
Complainant,

v.

Betsy DeVos,
Secretary,
Department of Education,
Agency.

Appeal No. 0120172987

Agency No. ED-2017-OCR-0016

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 21, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant was a former Agency employee, who previously worked
there as a General Attorney.

On February 21, 2017, Complainant filed a formal complaint claiming the Agency discriminated
against her based on disability and in reprisal for prior EEO activity when on or around January
10, 2017, she became aware she was not selected for the position of General Attorney, GS-0905-
15, in Office of Civil Rights, Kansas City Office, advertised under Vacancy Announcement KC-
OCR-2017-0001.

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.
0120172987

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Following an investigation, the Agency issued a final decision concluding Complainant had not
proven her discrimination or retaliation claims.

The instant appeal followed.

ANALYSIS AND FINDINGS

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 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; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
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. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant identified her disability as chronic fatigue syndrome, fibromyalgia, endometriosis,
vision impairment, and a metal wrist.

Complainant asserted that in 1998, she requested a reasonable accommodation for a disability
from Agency management. In 1999, Complainant pursued the EEO complaint process against
Agency management, alleging denial of reasonable accommodations, reprisal, harassment and a
discriminatory termination.

On June 12, 2003, Complainant and the Agency entered into a settlement agreement in the
Agency agreed to pay Complainant compensatory damages and attorney’s fees in satisfaction of
her complaint. The record reflects that since agreeing to the terms of the June 2003 settlement
agreement with the Agency, Complainant filed subsequent EEO complaints “for denial of
interview and hiring for GS-12 and GS-14 [positions] in 2016.”
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With regard to the position in question in the current complaint, the vacancy was advertised in
November 2016 on the USAJobs and Monster websites. Complainant filed an application, and
was included in the certificate of eligibles comprising of 40 applicants provided to management
by Human Resources.

Complainant was not among the five candidates interviewed for the position and later notified
that she was not selected. She believes that the former Regional Director, who had since retired,
eliminated her from consideration, mainly in retaliation for her prior EEO activity.

According to the Chief Attorney, the former Regional Director was the selecting official.2
However, prior to the final selection, the applications of the 40 eligible candidates were reviewed
by a three-member panel, consisting of the former Regional Director, the Chief Attorney and the
Enforcement Director. The Chief Attorney said they conducted the reviews independently, and
then met to discuss who to interview among the strongest contenders for the position. From this
discussion, five candidates were chosen to be interviewed by them. Afterwards, two candidates
were offered second interviews, conducted by another panel, which resulted in the final
selection.

Both the Chief Attorney and the Enforcement Director stated they had never worked with
Complainant, had no knowledge of her disabilities, and had never been named in her prior EEO
complaints. The Chief Attorney, however, stated he did provide an affidavit in a recent prior
complaint concerning another non-selection.

The Chief Attorney stated that he did not recommend Complainant for an interview because the
other candidates he did recommend were more qualified. He stated that he believed Complainant
had no prior supervisory experience, but did have some civil rights experience. As a result, he
rated her a “2” on a scale of 1 to 3 (with “1” being the strongest). He said he did not recommend
Complainant for an interview as those he did were rated higher. He also noted that the two
candidates selected for the final interviews were internal candidates, while Complainant was an
external candidate. The Chief Attorney denied any knowledge of the former Regional Director
taking Complainant’s application out of the panel’s consideration or exerting any pressure on the
other panel members not to recommend her.

The Enforcement Director confirmed that they decided 40 applicants were too many to interview
so the three panel members decided to separately review the applications and then arrive at a
consensus on the strongest candidates to interview. She said she did not recommend
Complainant for an interview because of insufficient management experience. She said that
Complainant’s candidacy was not discussed when she met with the Chief Attorney and the
former Regional Director to decide on who would be interviewed because Complainant did not

2 The former Regional Director had retired from the Agency at the time of the investigation and
did not provide a statement.
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appear on any of their three lists of recommended candidates for interviews. She also denies that
the former Regional Director pressured them not to consider Complainant.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for her non-selection were a pretext masking unlawful discrimination and/or retaliation.

Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of
the evidence of 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.
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).
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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
October 25, 2018
Date