U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carol E.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2020000503 Hearing No. 570-2017-00006X Agency No. USA-2016-00420 DECISION On September 14, 2019, 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 16, 2019 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the Human Resources Officer (HRO) position, GS-0202-14, at the Agency’s U.S. Attorney’s Office for the District of Columbia in Washington, D.C. When she applied for the position around late September/early October 2015, she was employed by the Marine Corps Air Station (MCAS), Marine Corps Community Services (MCCS), as the Chief of Human Resources in Iwakuni, Japan. 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. 2020000503 2 On or around November 15, 2015, Complainant was terminated from her MCCS HRO position as a result of an Inspector General (IG) investigation at MCCS, finding Complainant had violated nepotism rules, federal ethics regulations, and had engaged in a pattern of misconduct. Complainant stated she initiated EEO contact with MCCS, alleging her termination was discriminatory. In December 2015, the Agency reached out to Complainant to inform her they would like to interview her for the position. The Acting HRO (AHRO) and her supervisor, the Administrative Officer (AO) were part of the recruiting management team who conducted the first round of interviews. After a successful first interview, Complainant was referred to the Chief Human Resources Officer for a second interview. AO noticed Complainant did not list a reference for her current employer, and on January 4, 2016, AO emailed Complainant wishing her luck on the second interview and informing her he would be contacting the MCAS Iwakuni Commanding Officer. Complainant replied to AO’s email the same day, informing him the Commanding Officer may not speak to AO. She explained her employment had ended and the reason for the termination was “because I am the victim of retaliation and discrimination and I’m currently appealing MCCS decision to the CO.” AO replied asking Complainant to call him and that he understood “these things happen.” Complainant and AO spoke on the phone on or around January 5, 2016 regarding her employment with MCCS and she further explained her reasons for the termination. Complainant stated AO told her he wanted to ensure that her termination was not for cause. On January 6, 2016, AO emailed Complainant’s immediate supervisor in Iwakuni (S1) with several questions. S1 advised AO that Complainant was terminated based on an Inspector General investigation finding that she had breached federal ethics rules and had engaged in nepotism. S1 informed AO that Complainant was appealing her termination through the available administrative process, arguing the IG’s findings were not supported by fact and that witnesses were biased against her. S1 also stated Complainant’s position was a GS-13, Step 4 equivalent. On January 11, 2016, Complainant received an email from AO stating she had not been selected for the position and no tentative offer would be forthcoming. Complainant responded and asked if AO had spoken with anyone from MCCS Iwakuni. AO did not reply to Complainant’s email. The Agency did not make a selection from the Certificate of Eligibles for the position. On March 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when she was not selected for the position of Human Resources Officer, Vacancy Announcement No. 15-DC-1506776-MS. 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). Complainant timely requested a hearing. 2020000503 3 The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, granted summary judgment in favor of the Agency, and issued a decision on February 14, 2018. In the decision, the AJ determined that there was no evidence that the alleged incidents were based on retaliatory animus. AO stated Complainant was not selected for the HRO position because management learned Complainant had been terminated from her previous job at the recommendation of an IG investigation. Another factor was that Complainant’s resume provided inaccurate information when it listed she was a GS-14 equivalent, and AO learned later she was a GS-13 equivalent. Complainant did not dispute that she was terminated from her previous position or that her resume provided inaccurate information about her grade/pay level. The AJ concluded Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020000503 4 Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 at n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima face case of reprisal, we find that the Agency articulated legitimate, non-retaliatory reasons for its actions as set forth in detail above. Complainant's subjective belief that the non-selection was the result of reprisal is insufficient to prove pretext. AO stated the Agency did not select Complainant because they learned she was terminated from her previous position upon the recommendation of an Inspector General investigation that found she had committed ethical violations in the hiring of her husband and brother, and that her resume incorrectly stated that her position was a GS-14 equivalent position. ROI at 157-158. AO stated that had he learned she had been terminated for cause during the first round of interviews, he never would have referred her to the second interview. ROI at 158. Construing the evidence in the light most favorable to Complainant, the Commission finds no persuasive evidence that Complainant's protected EEO activity was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgement was appropriate and a preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2020000503 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000503 6 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 February 25, 2021 Date
