Marguerite L.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency.Download PDFEqual Employment Opportunity CommissionMay 17, 20180120160189 (E.E.O.C. May. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite L.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 0120160189 Hearing No. 551-2013-00141X Agency No. BLM-13-0004 DECISION On September 28, 2015, 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 September 14, 2015, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Forestry Technician - Initial Attack Dispatcher, GS-0462-07, at the Agency’s Fire Service Center in Fort Wainwright, Alaska. On November 8, 2012, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnamese), sex (female), color (Brown), disability (post- traumatic stress disorder (PTSD) and related physical effects), and reprisal (prior protected EEO activity) by not selecting her for the position of Forestry Technician - Dispatcher Intelligence 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. 0120160189 2 Assistant, (BLM Vacancy Announcement AK-12-708531-JE) on September 11, 2012. Complainant named an Associate Manager who served as the selecting official (SO) in the merit promotion action as the responsible management official. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a motion for summary judgment with the AJ. Complainant filed her opposition to the Agency’s motion and her own motion for summary judgment. The AJ assigned to the case granted the Agency’s motion for a decision without a hearing, issuing a decision on August 26, 2015. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant withdrew sex as a basis of discrimination since the Selectee was also female. She averred that she suffered from PTSD along with severe depression and a generalized anxiety disorder. She also noted that she experienced pain in her lower back and chest as well as muscle spasms, tension headaches, and nausea whenever she was under stress. IR 232-40. In addition, she averred that she had several EEO complaints pending at the time of her nonselection. IR 233. According to the SO, only two candidates applied for the Intelligence Assistant Position: Complainant and the Selectee. The SO convened a selection panel which consisted of herself, the Fire Management Resources Section Chief (Panelist 1), and the Alaska Interagency Coordination Center Manager (Panelist 2). IR 336, 342-43. The panel members asked Complainant and the Selectee the same set of questions. IR 284-285. At the conclusion of the interviews, Panelist 1 recommended Complainant while Panelist 2 recommended the Selectee. Panelist 1 averred that Complainant was just as qualified as the Selectee and had more experience in dispatch and technical computer skills, a fact that the Selectee herself acknowledged. Like Complainant, the Selectee also had a pending EEO complaint at the time of the selection. IR 311-13, 356-58; Supplemental Affidavit of Selectee dated December 15, 2013, ¶¶ 1, 2. Panelist 2, however, averred that the Selectee had performed better than Complainant during the interview. IR 349-50. The SO averred that she ultimately chose the Selectee on the basis of her interpersonal skills which were demonstrated during the interview. IR 242, 314, 339-44. The AJ found that even assuming Complainant had established her prima facie cases of discrimination on all her claimed bases, the Agency articulated legitimate, nondiscriminatory reasons for her non-selection. The SO based her selection on the Selectee’s superior job interview and better interpersonal and communication skills. The AJ noted that Complainant admitted she interviewed poorly for the position, as she used notes to answer the questions and did not make eye contact. He concluded that Complainant had not shown the Agency’s reasons for her nonselection to be pretext for discrimination. The AJ also found that the Agency’s failure to retain the interview notes did not demonstrate pretext, as the SO gave a statement testifying to the selection process and the reasons for Complainant’s nonselection. 0120160189 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 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). The normal first step in the process would be for Complainant to 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, since the SO articulated a legitimate, nondiscriminatory reason for not selecting Complainant, namely that the Selectee had the overall edge in terms of qualifications, particularly in the area of communications and interpersonal skills, as demonstrated during the interview. See U.S. Postal Service Board 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 warrant a reversal of the AJ’s summary judgement and a remand for a hearing, Complainant must ultimately raise a genuine issue of material fact as to whether the SO’s explanation for choosing the Selectee is a pretext for discrimination on at least one of the bases identified in the complaint. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community. 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). Pretext can be raised as an issue by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that she had been discriminated against on multiple bases when she was not selected for the Intelligence Assistant position, Complainant replied that the selectee was less qualified for that position. IR 243-44. In nonselection cases, Complainant could raise the issue of pretext by showing that her qualifications for the position 0120160189 4 were plainly superior to those of the Selectee. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant should bear in mind, however, that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). All three panelists acknowledged that both candidates were highly qualified for the position. Panelist 1 thought that Complainant was better qualified by virtue of having had actual experience in the position through details and more extensive computer and technical problem-solving skills. On the other hand, Panelist 2 recommended the Selectee because he thought that the Selectee had a better interview performance than Complainant, and that this reflected the interpersonal and communication skills that the incumbent would need in order to succeed in the position. The candidates were not perfect, however. The SO testified in a deposition that the Selectee had behaved rudely toward other employees, as did Panelist 1 in his affidavit. The SO also stated that the Selectee forthrightly acknowledged this in the interview. Moreover, Complainant herself admitted that she did not do well in her interview. She averred that the interview was very stressful for her and that her ability to respond to interview questions was slowed by feelings of anxiety and depression. The SO ultimately followed the recommendation of Panelist 2 based on the results of the interviews. We therefore find that Complainant did not demonstrate that her qualifications were plainly superior to those of the Selectee. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). The SO stated in her investigative affidavit and her pre-hearing deposition that she was unaware of Complainant’s disability at the time of the selection. IR 337-38; SO’s deposition transcript, pp. 19-20. In support of her claim of disability discrimination against the SO, Complainant relies on the affidavit of a Motor Vehicle Operations Supervisor (MVOS) who had worked with her. The MVOS averred that it was common knowledge around the office that Complainant had a medical problem, and that some people thought that she had a “mental” problem. Affidavit of Motor Vehicle Operations Supervisor, ¶ 8. Given that the SO had given the same statement in two different fora and that the MVOS did not directly contradict the SO’s assertion that she was unaware of Complainant’s disability, we find that the MVOS’s affidavit is not sufficient to undermine the SO’s assertion that she was unaware of Complainant’s disability at the time of the selection in a manner that raises a genuine issue of material fact regarding the SO’s motive in choosing the selectee. 0120160189 5 In her appeal brief, Complainant argued that the SO’s failure to preserve the notes from the interviews was itself sufficient to raise a genuine issue of material fact concerning the existence of a discriminatory motivation on the part of the SO. The SO testified that as soon as the selection had been cleared by the Office of Human Resources, she had destroyed all of the notes that had been generated by the panel members, and that this was a routine practice undertaken in order to protect personal and confidential information that could be contained in those notes. IR 343; SO’s deposition transcript, pp. 15-16; Declaration of SO, ¶¶ 8, 9. As the Agency acknowledged, this practice is a clear violation of EEOC Regulation 29 C.F.R. § 1602.14, which requires, in pertinent part that any records having to do with hiring, promotion, and other personnel actions be preserved for one year from the date of the making of the record or the personnel action involved, whichever occurs later. A failure to preserve records relevant to a personnel action raised in an EEO complaint can in appropriate circumstances support an adverse inference against the Agency. See Ramirez v. U. S. Postal Service, EEOC Request No. 05920839 (March 4, 1993) citing Colquitt v. Veterans Administration, EEOC Request No. 05870528 (June 14, 1988). Such an inference would not be appropriate in this case, however. The SO averred that she had already destroyed the interview notes by the time Complainant informed her on October 17, 2012 that she would be pursuing an EEO complaint on the nonselection. Declaration of SO, ¶ 9. That, together with the fact that the destruction of the interview notes was a routine practice at the Agency, tends to negate any inference that the SO destroyed the notes in anticipation of Complainant filing an EEO complaint against her. Moreover, Complainant’s own admission that she had performed poorly during the interview fills in the evidentiary gap created by the destruction of the notes. Aside from her own assertions, Complainant has not presented affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict the SO’s explanation as to why she destroyed the notes, or undermined the SO’s veracity to such an extent as to raise a genuine issue of material fact as to the existence of an unlawful motive on the part of the SO.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding that Complainant did not establish that she was discriminated against as alleged. 2 The Agency should review and if necessary, revise its policies concerning document retention so as to bring those policies into compliance with 29 C.F.R. § 1602.14. 0120160189 6 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. 0120160189 7 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 May 17, 2018 Date Copy with citationCopy as parenthetical citation