[Redacted], Dortha G., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Marshall Flight Center), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2021003886 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dortha G.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Marshall Flight Center), Agency. Appeal No. 2021003886 Hearing No. 420-2020-00283X Agency No. NCN-19-MSFC-00238 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2021, 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. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her sex. 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. 2021003886 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist (GS-15) at the Agency’s Office of the Chief Information Officer (OCIO) at the Marshall Flight Center in Huntsville, Alabama. On April 23, 2019, the Agency opened a vacancy for an IT Project Manager (GS-15), in the Communications Service Office, under vacancy number MS19C0094. Report of Investigation (ROI) at 148-55. Complainant stated that she submitted her application on May 5, 2019, and she was interviewed for the position. ROI at 74-5. On July 14, 2019, the selecting official (SO) (male) sent a global email to announce the selection for the IT Project Manager position, who was referred to as the Deputy Program Manager (DPM) (male). ROI at 281. Complainant stated that on July 30, 2019, she met with SO to “de-conflict” her position description and DPM’s position description. Complainant stated that SO tried to convince her that the two position descriptions differed. ROI at 79-80. On November 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her sex (female) when: 1. on July 14, 2019, Complainant was notified that she was not selected for the Communications Deputy Project Manager (IT Project Manager) position, under vacancy announcement number MS19C0094;2 and 2. on July 30, 2019, Complainant learned that she was expected to continue performing the same duties as the position for which she was not selected, based on similarities in the two position descriptions. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 29, 2021 motion for a decision without a hearing. On April 26, 2021, the AJ issued a decision finding that, even when viewing the evidence in the light most favorable to Complainant, she failed to prove that the Agency subjected her to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. 2 Complainant stated that DPM resigned soon after accepting the position, and the Agency re- posted the same vacancy and selected another male candidate in March 2020. ROI at 76. We note that Complainant did not apply when the position was re-posted, and her complaint does not include an allegation of discrimination for the second selection for this position. 2021003886 3 CONTENTIONS ON APPEAL Through her non-attorney representative, Complainant argues that a hearing should have been held and a ruling issued in her favor. Complainant asserts that there are several disputed facts, including: whether Complainant was performing the same duties as the selectee; whether there are two distinct position descriptions, and if so, are the duties the same. The Agency counters that Complainant failed to identify a single material fact contained in the record which involves a clearly erroneous interpretation of material fact. The Agency argues that Complainant simply reasserts the same unsuccessful arguments that were made in her opposition to the Agency’s Motion for Summary Judgment. She has not, contends the Agency, identified or alleged with specificity, material facts that were erroneously interpreted by the AJ. The Agency requests that the Commission affirm its final order adopting the AJ’s decision. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 Decision without a hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2021003886 4 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing 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 instant record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserts that there are several disputed facts: (1) whether Complainant was performing the same duties as the selectee; (2) whether there are two distinct position descriptions, and if so, whether the duties are the same or similar; and, more generally, (3) “a number of disputed facts” in the Agency’s responses to Complainant’s discovery requests. However, Complainant did not specify any material facts that are in dispute. We note that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment 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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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 ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. 2021003886 5 Regarding the non-selection, SO stated that DPM was selected due to his prior experience overseeing over 290 staff members across a large geographic area; understanding of the nuances and differences between mission-critical communications services and corporate (administrative) communications services; and superior qualifications in IT security management. Contrastingly, SO stated that Complainant’s experience was limited to corporate (administrative) communications and that she did not demonstrate as much program management experience or cyber security experience as DPM. SO also stated that Complainant did not score as well as other candidates in the area of relevant mission customer experience, and noted that during her interview Complainant stated she was unaware that mission customer responsibilities were part of the position’s job duties. ROI at 98. With respect to claim 2, SO stated that the two position descriptions were distinct. For example, SO stated that Complainant’s position included the duties of a corporate services systems engineer and project manager, as well as providing technical direction. The other position was a leadership position directing the activities of personnel and the general management of the Communications Program, including establishing organizational priorities in line with the OCIO’s goals and objectives. According to SO, he met with Complainant and went line-by-line through the position descriptions to explain the differences. SO averred that he agreed to some modifications, to avoid confusion, such as changing “change management” to “guidance” because the former could be confused with technical change. However, SO emphasized that such changes did not alter the requirements of Complainant’s position or the fact that the two positions were different. ROI at 100-1, 103. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, 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) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). We note that Complainant did not provide any arguments on appeal that SO’s proffered reasons were not worthy of belief. Regarding claim 2, a review of the two position descriptions supports SO’s assertion that the duties of the two positions were not similar. For example, Complainant’s position description shows that 65% of her duties are to serve as a senior telecommunications expert and technical project manager, while DPM’s position includes providing managerial advice and leadership; performing human resources functions; and overseeing contractors for network services. ROI at 293-4, 286-7. Complainant’s bare assertions that SO discriminated against her are insufficient to prove pretext or establish that his actions were discriminatory. Moreover, in a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). 2021003886 6 Here, Complainant stated that DPM’s prior position was a Computer Information Security Officer, but that the position at issue “isn’t about security”. Therefore, she did not see how DPM was better qualified. ROI at 75. We note, however, that SO stated that cybersecurity experience was a major responsibility of every manager, especially in the IT communications infrastructure managed by the Communications Program. ROI at 97. Further, a member of the interview panel found that DPM’s qualifications were superior to Complainant’s due to his cybersecurity background and experience collaborating with service provider organizations to come up with solutions. ROI at 111. The other member of the interview panel added that Complainant did not seem prepared for the interview because she was not well-versed in the position duties, missing a significant amount of the duties. ROI at 118-19. Accordingly, we find that Complainant did not establish that her qualifications were plainly superior to DPM’s qualifications. Even assuming that Complainant and DPM were equally qualified for the position, the Commission has previously found that an agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC Appeal No. 0120110338 (March 23, 2011), citing Texas Dept. of Community Affairs, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). Further, we note that in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Texas Dep’t of Community Affairs, 450 U.S. at 259. In this case, there is no evidence of an unlawful factor in the Agency’s decision to select DPM over Complainant. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her sex. 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her sex. 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. 2021003886 7 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. 2021003886 8 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 November 4, 2021 Date