[Redacted], Cassy W., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Apr 28, 2022

Appeal No. 2021004557 (E.E.O.C. Apr. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassy W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021004557 Agency No. DOI-OS-19-0080 DECISION On August 9, 2021, 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 1, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the position of Attorney-Advisory at the Agency’s Office of Solicitor, Acquisitions, and Intellectual Property Branch in Washington, D.C. Complainant is a brown African-American female. Complainant applied for similar positions at the Agency since 2005; she has, however, never been employed there. Complainant had initiated but did not complete an informal complaint after a non-selection in 2009. She believed the Assistant Solicitor for Acquisitions and Intellectual Property (Selecting Official) has retaliated against her by not selecting her for any Attorney-Advisor positions since that time. Report of Investigation (ROI) at 106-07 and 116-17. 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. 2 2021004557 On August 20, 2018, the Agency posted the position of GS-15, Attorney-Advisor under vacancy announcement number SOL-2018-0044. Complainant applied and was referred for an interview. Applicant (white Caucasian male) and Selectee (white Caucasian female) were also interviewed. Selectee formally worked with the Agency. ROI at 364-67. A three-member Panel was responsible for the selection process. Selecting Official was Panel Member 1. The Director of the Office of Acquisition and Property Management was Panel Member 2. An Attorney-Advisor for the Branch of Acquisitions and Intellectual Property was Panel Member 3. The Panel Members reviewed and interviewed all three applicants. All candidates were asked the same interview questions. After the interviews were conducted, the Panel members unanimously agreed that Selectee was best qualified for the position based on her outstanding qualifications, pertinent recent background, and performance during the interview. Specifically, Selecting Official stated that before leaving the Branch for another position in 2016, Selectee had independently and successfully completed a significant number of General Accountability Office bid protests for a number of years. He added that Selectee also worked on a wide variety of government contract matters that included government contract claims and appeals. ROI at 210-12. On November 19, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (sex), color (brown), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In 2005, Complainant was not hired for a GS-14/15 Attorney-Advisor position; 2. On July 2, 2009, Complainant became aware she was not selected for the position of GS-14/15, Attorney-Advisor advertised under vacancy announcement number SOL- 2009-0016; 3. In 2010, Complainant was not hired for a GS-14/15 Attorney-Advisor position; 4. In 2016 or 2017, Complainant was not hired for a GS-15, Attorney-Advisor position; 5. On or about October 18, 2018, Complainant was not selected for the position of GS- 15, Attorney-Advisor under vacancy announcement number SOL-2018-0044, or the vacancy was cancelled to avoid hiring her, or she would not be referred. In addition to not being selected, the Selecting Official arrived forty-five (45) minutes late for the interview resulting in two panel members having to leave the interview early and the interview process being disparaged. In a revised acceptance letter dated February 28, 2019, the Agency dismissed claims 1 through 4 pursuant to 29 C.F.R.§1614.107(a)(2) because Complainant did not make initial EEO contact until October 25, 2018. ROI at 28. 3 2021004557 The Agency accepted the complaint for investigation. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ affirmed the dismissal of claims 1-4. Subsequently, Complainant withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contests to the dismissal of claim 2. Complainant argues, without corroborating evidence, that during discussion of her informal claim in 2009, the EEO Investigator told Complainant that Selecting Official “mentioned he had hoped to be able to hire at least one black woman for the position” and that one of the selectees “identifies as black.” Complainant asserts that based on that information, she decided to abandon pursuit of a formal complaint in 2009. The Agency requests that the Commission deny Complainant’s appeal. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS As a preliminary matter, we note that although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. See Equal Employment Opportunity Management Directive (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). Here, Complainant did not challenge the dismissal of claims 1, 3, and 4. Therefore, this decision will not address those claims. Dismissal of Claim 2 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, 4 2021004557 §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 Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant 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. Here, Complainant requests that claim 2 be included in the instant complaint, arguing that she withdrew an informal complaint in 2009 based on statements allegedly made by Selecting Official that were related to Complainant by an EEO Investigator. Upon review, Complainant was clearly aware of the alleged discrimination in 2009, raised the matter in an EEO complaint, and withdrew the matter. Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor). Therefore, we find that the Agency properly dismissed claim 2. Disparate Treatment - Claim 5 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. 5 2021004557 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, Selecting Official stated that Complainant was not selected for the position at issue because Selectee was the strongest applicant considering her pertinent, recent background and performance during the interview. Panel Member 3 also explained that the interview panel ranked Selectee first and Complainant as third. He asserted that Complainant had minimal government protest experience while Selectee possessed vast protest experience, which was the main duty associated with the position. ROI at 246-47. Our review of the interview notes for Complainant and Selectee corroborates these explanations. ROI at 372-75 and 376-78. Accordingly, we find that the Agency has articulated a legitimate non-discriminatory reason for Complainant’s non-selection. We next turn to Complainant to show pretext. Complainant provided conclusory statements that her non-selection was based on discriminatory animus without any evidence to support such statements. Complainant believed that the non- selection was discriminatory because she thought the Selectee was a male. ROI at 116. However, contrary to Complainant’s belief, Selectee is female. There is also no evidence that there is a nexus between Complainant’s 2009 informal EEO filing and her 2018 non-selection. Complainant has not shown that she was the best qualified candidate based on her allegations alone. We are not in the position to entertain vague and conclusory allegations that create a tenuous nexus between an adverse action and an inference of discrimination without corroborating evidence. Cumberbatch v. U.S. Postal Serv., EEOC Doc No. 0120122253 (Oct. 11, 2012) (finding that the Complainant's assertions, made without support, were insufficient to show that the Agency's reasons constituted pretextual discrimination). Therefore, we conclude that Complainant has not shown that she was subjected to discrimination with respect to claim 5. Similarly, we find that Complainant's claim of a hostile work environment fails with regard to claim 5. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that her 2018 non-selection was motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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. 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: 6 2021004557 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 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. 7 2021004557 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, Director Office of Federal Operations April 28, 2022 Date