Marguerite L.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

May 17, 2018

0120160189 (E.E.O.C. May. 17, 2018)

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