[Redacted], Donette A., 1 Complainant,v.David A. Jones, Acting Chairman, Federal Retirement Thrift Investment Board, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021002884 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donette A.,1 Complainant, v. David A. Jones, Acting Chairman, Federal Retirement Thrift Investment Board, Agency. Appeal No. 2021002884 Hearing No. 570-2021-00068X Agency No. FRTIB-20120-04 DECISION On April 19, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 8, 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 worked as a Management and Program Analyst/Senior Risk Manager, GS-14, at the Federal Retirement Thrift Investment Board’s Office (FRTIB)’s Office of Enterprise Risk Management (EORM) in Washington, D.C. On April 1, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African American) and sex (female) when, on March 18, 2020, she was notified of her non-selection for the position of Supervisory Management and Program Analyst (Division Chief), advertised under Vacancy Announcement Number FRTIB-20-MP- 003-10633988 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. 2021002884 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On February 22, 2021, the AJ issued a Notice of Intent to Issue a Decision Without a Hearing. Both Complainant and the Agency filed their response. The Agency then filed its Motion for Summary Judgment on March 8, 2021. Complainant responded to the Motion. On March 19, 2021, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its April 8, 2021 final order, the Agency adopted 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). 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. 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 2021002884 3 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 fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant had worked with the Agency since January 2012. On October 31, 2019, Complainant applied for the position of Supervisory Management and Program Analyst (Division Chief) under Vacancy Announcement Number FRTIB-20-MP-003-10633988. On March 18, 2020, Complainant was notified that she was not selected for the Supervisory Management and Program Analyst (Division Chief) position. Complainant maintains that she was not selected due to her race and sex. The Deputy Chief Risk Officer, EORM was Complainant’s second-line supervisor (S2) and was the hiring official for this position. She was aware of Complainant’s race and sex in 2017. In addition to S2, the interview selection panel included the Supervisory Auditor-Audit Management Division Chief, EORM, Deputy General Counsel, Office of the General Counsel, and the Deputy Director, Office of Participant Services. The panel members were aware of Complainant race and sex. The Chief Risk Officer, SES, OERM, was not part of the selection process but agreed with the panel’s decision. based on a discussion with S2. S2 stated that the two primary factors that she considered in assessing candidates were: (1) technical skills in enterprise risk management and internal control programs; and (2) strong supervisory experience and skills. After receiving the two certification lists from the Supervisory Human Resources Specialist, S2 and the Supervisory Auditor-Audit Management Division Chief (Panelist 1) reviewed the certification lists, developed interview questions, and conducted seven interviews with three internal candidates (including Complainant) and four external candidates. After the interviews, the interview panel ranked the interviewees. Complainant was ranked sixth out of the six people interviewed who were determined to be qualified for the position. The panel concluded that Complainant’s insufficient supervisor experience was the key factor in her ranking last of all candidates. The selectee (African American, male) was recommended by the panel for the position.2 2 Two other more highly ranked candidates were initially selected by the panel. However, the first-choice candidate declined the position and the second-choice candidate was not available to start when needed by the agency. 2021002884 4 According to S2 (Asian, female), the selectee was chosen because he was an internal candidate and had extensive technical and supervisory skills. She said he was the highest ranked candidate “who would accept the job by the start date needed and ranked significantly higher than the Complainant by the Interview Panel.” S2 stated that the panel concluded that Complainant’s insufficient supervisor experience was the key factor in her ranking last of all candidates. The Chief Risk Officer (White, male) stated that the selectee was a better selection than [Complainant] was that he had more supervisory experience, noting there was an emphasis on supervisory skills during the interview process. He also noted that during the selectee’s interview, he provided “better overall responses” than Complainant. One of the interview panelists, the Deputy General Counsel (Indian American, male) stated that the selection process focused on each candidate’s qualifications and experience. He noted that the questions required the candidates to demonstrate an understanding of substantive requirements of running both Enterprise Risk Management and Internal Controls program. Moreover, the Deputy General Counsel asserted that the selectee for the subject position was considered by the pane to be the strongest internal candidate. 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. Her race or sex did not appear to have any impact on the decision to not to select her for the position in question. 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 2021002884 5 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. 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. 2021002884 6 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 September 21, 2021 Date