[Redacted], Denese G., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021002225 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denese G.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021002225 Hearing No. 570-2020-00662X Agency No. 2019-0091-HQ DECISION On February 26, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 26, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant was an applicant for hire at the Agency’s Environmental Protection Agency in Washington D.C. On July 17, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race (African American) and in reprisal for protected EEO activity (prior activity) when, on May 2, 2019, she was informed that she was not selected for the positions of Program Analyst (R-OCSPP-DE-2019-0058) and Environmental Protection Specialist (R- OCSPP-DE-2019-0053). After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity 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. 2021002225 2 Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On December 14, 2020, the AJ issued a Notice of Proposed Summary Judgment. Subsequently, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its Final Agency Order adopting the AJ’s finding of no discrimination. 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant 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. As an initial matter, on appeal, Complainant alleged that due to the impact of Covid-19 on her family,2 she did not have a fair opportunity to participate in the investigation of her complaint. However, the record shows that on September 9, 2019, Complainant corresponded with the EEO investigator, confirmed receipt of the affidavit paperwork, and that stated that she intended to submit her affidavit. Complainant was again asked by the investigator via e-mail to provide the affidavit on September 7, 16, 24, and 28th. However, she never submitted an affidavit. Additionally, on November 13, 2019, the EEO investigator contacted Complainant and provided her with an opportunity to submit a rebuttal statement in response to the statements from Agency management. Again, she failed to submit a statement. In sum, the record confirms that Complainant had the opportunity to fully participate in the EEO investigation of her complaint but failed to do so. 2 Complainant provided no evidence that she was medically incapacitated during this period. 2021002225 3 A claim of disparate treatment is examined under the three-party 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). The undisputed facts support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Both announcements, for Program Analyst (R-OSCPP-DE-2019-0058) and Environmental Protection Specialist (R-OSCPP-DE-2019-0053), required qualified candidates with veteran’s preference to be evaluated first before non-veteran candidates could be considered. Complainant was not a veteran. Regarding the Program Analyst position, Complainant was rated “well qualified.” However, Complainant was not on the certificate of eligible list and was not interviewed. The Lead Human Resources (LHR) Specialist (Caucasian) stated that Complainant was not referred for further consideration because Complainant’s responses to the applicant assessment questionnaire scored her at the “Well Qualified” level, which was outside of the range of the top category of “Best Qualified.” The HR Specialist explained that under the Category Rating procedures, the Agency can only issue the names to the selecting official of the qualified applicants whose scores landed them in the “Best Qualified” category. He further stated that Complainant’s score landed at both the GS-09 and GS-11 levels in the Well Qualified category, which are scores in the 87-94.99 range. As this score placed her outside of the range of the top category, “it could not be referred.” Regarding the Environmental Protection Specialist, Complainant was rated “Best Qualified.” Complainant was not on the certificate of eligible list and was not interviewed. The LHR Specialist stated that five preference eligible veterans were found qualified at the GS-07 level and six preference-eligible veterans were found qualified at the GS-09 within the same category. Moreover, the LHR stated that due to the veteran’s preference law in federal hiring, a hiring manager may not bypass a preference eligible veteran to select a non-veteran. As a result, Complainant as a non-veteran could not be referred to the selecting official. On appeal, we conclude that beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. 2021002225 4 To support her retaliation claim, Complainant claimed that a Labor and Employee Relations Specialist was involved in the removal of her husband “around the time” of June 2019 when Complainant sought EEO counseling for this complaint. However, there is no evidence that this official was involved in staffing for the Agency or that she had any role in the selection of candidates for the positions at issue. In sum, we conclude the AJ correctly determined that neither Complainant’s race nor retaliatory animus appeared to have any impact on the selection decisions made. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 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. 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). 2021002225 5 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. 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. 2021002225 6 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 April 20, 2022 Date