[Redacted], Dotty C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020002801 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020002801 Hearing No. 410-2017-00403X Agency No. DLAR-16-0342 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 February 13, 2020 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 age, color, race or sex, or in reprisal for prior protected EEO activity, when it did not select her for two positions. 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. 2020002801 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician (GS-07) at the Agency’s Defense Distribution Center in Warner Robins, Georgia. Complainant stated that on August 24, 2015, she received a tentative offer for a General Supply Specialist (GS-09) position. Report of Investigation (ROI) at 91, 93. On June 6, 2016, the Agency rescinded the job offer because Complainant was unable to obtain a security clearance in a reasonable amount of time. ROI at 708. The Selecting Official (SO1) (age 55, white, White, female) stated that the Agency waited nine months before deciding to repost the position. ROI at 121. On June 24, 2016, the Agency reposted the vacancy for a General Supply Specialist (GS-09), under vacancy announcement number DLAAvn-16-1729563-MP. ROI at 228-31. Complainant stated that she reapplied for the position and was interviewed on July 19, 2016. Complainant stated that she was informed that she was not selected on August 3, 2016, and that the selectee (S1) was a 39-year-old White male. ROI at 93, 95, 97-8. On September 2, 2016, the Agency opened a vacancy for a Supply Management Specialist (GS-09), under vacancy announcement number DLAAvn-16-1793561-MP. ROI at 242-5. Complainant stated that she was informed that she was not selected for the position on October 12, 2016. ROI at 98. On October 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (light skinned), and age (42), and in reprisal for prior protected EEO activity (Agency case no. DLAR- 16-0268),2 when on August 3, 2016 and October 12, 2016, she was notified of her non-selection for two GS-09 General Supply Specialist positions, under vacancy announcement numbers DLAAvn-16-1729563-MP and DLAAvn-16-1793561-MP, in Warner Robins, Georgia. 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on January 29, 2020. The AJ noted that, on August 2, 2018, the parties participated in a supplemental Initial Conference where they discussed the facts of Complainant’s case in detail, after the parties submitted supplemental documents. The AJ found that further development of the record was unlikely to lead to a finding of discrimination. 2 This complaint included Complainant’s allegation of discrimination when the Agency rescinded the job offer on June 6, 2016. The Commission affirmed the Agency’s final order adopting the AJ’s decision without a hearing finding no discrimination in Dotty C. v. Dep’t of Def., EEOC Appeal No. 2019001629 (Dec. 10, 2019). 2020002801 3 The AJ determined that the management officials provided legitimate nondiscriminatory reasons for not selecting Complainant, and that Complainant did not offer any evidence to show that the Agency’s articulated reasons were pretext for discrimination. The AJ concluded that the preponderant evidence did not show that Complainant was discriminated against when she was not selected for the vacant positions. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her representative, Complainant argues that the AJ erred when she issued a decision without a hearing, without first issuing a Notice of Intent to Issue a Decision Without a Hearing. Complainant states that the AJ noted that the parties participated in an initial teleconference call and thereafter, both parties supplemented the record. However, Complainant asserts that after the supplemented record, there was no follow up teleconference, and the AJ did not provide an opportunity for discovery; Complainant was not given the opportunity to identify deficiencies in the record or in the Agency’s supplemental production; and Complainant was not given the opportunity to conduct discovery. Complainant also asserts that the AJ did not communicate her intent to issue a decision without a hearing during the teleconference. Complainant requests that the Commission reverse the AJ’s decision and remand the complaint for the AJ to issue a Notice of Intent to Issue a Decision Without a Hearing. Agency’s Contentions The Agency states that prior to issuing a decision without a hearing, the AJ provided both parties with an opportunity to supplement the record, and she held a detailed discussion of the issues and evidence during an initial conference when the parties essentially provided their respective arguments on summary judgment. The Agency asserts that, even if the AJ erred by not providing specific notice of her intent to issue a decision without a hearing or an opportunity to oppose such a decision, her Decision Without a Hearing was appropriate because there was no evidence of any dispute as to material facts in this case. The Agency also argues that Complainant had an opportunity to identify any deficiencies in the record or in the Agency’s supplemental production during the initial conference. The Agency argues that, even assuming that Complainant established a prima facie case of discrimination, she consistently failed to establish that her qualifications were superior to those of the selectees, or otherwise establish that the Agency’s legitimate nondiscriminatory reasons for its selections were a pretext for discrimination. 2020002801 4 For the first vacancy, Complainant stated that she did not agree with SO1’s legitimate nondiscriminatory reasons and referred generally to her resume, but the Agency states that Complainant did not explain how her education or experience made her qualifications superior, much less plainly superior, as compared to S1’s qualifications. Regarding the second position, the Selecting Official (SO2) (age 33, white, Caucasian, male) found the selectee’s interview performance to be superior to that of Complainant. The Agency argues that, on appeal, Complainant failed to provide any evidence or compelling argument that any material facts were in dispute, and that a review of the record shows that Complainant has not proven, by a preponderance of the evidence, that she was subjected to discrimination. The Agency requests that the Commission affirm the AJ’s decision, as adopted and implemented by the Agency. 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 . . .â€); 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 Chap. 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 lawâ€). ANALYSIS AND FINDINGS Decision without a hearing We 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). 2020002801 5 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 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 argued that the AJ erred in issuing a decision without a hearing, without first issuing a Notice of Intent to Issue a Decision Without a Hearing; and that she was not given the opportunity to identify deficiencies in the record or in the Agency’s supplemental production, nor given the opportunity to conduct discovery. While we note that the AJ should have issued a Notice of Intent to Issue a Decision Without a Hearing, we find that this was not a harmful error. On appeal, Complainant made general arguments that she was denied opportunities to identify deficiencies in the records or conduct discovery. However, Complainant did not specify any evidence that was deficient or missing, and while Complainant stated that there was no additional teleconference after the record was supplemented, the record shows that the Agency submitted its supplemental documents on July 10, 2018, which was prior to their teleconference with the AJ on August 2, 2018. In addition, Complainant did not assert that there were any genuine disputes of material facts. Accordingly, we find that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. 2020002801 6 At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, color, race or sex, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. Regarding the first vacancy, SO1 stated that Complainant interviewed well, but not as well as the other candidates, and that her resume was not as strong as S1’s resume. SO1 also stated that Complainant and S1 had similar experiences, but that S1 had more experience; demonstrated better writing/communication skills; and was able to better articulate his work experience on his resume, as compared to Complainant. SO1 noted that Complainant was one of the top potential candidates for this position and had been selected in the past. ROI at 124. Regarding the second vacancy, SO2 stated that the position was unique because it involved a $1.8 billion contract, and he needed someone who could communicate well with contractors; prepare reports; and provide status briefings, and that Complainant did not show that she had the necessary communication skills for the position. SO2 also stated that when Complainant requested feedback regarding her non-selection, she acknowledged that she did not describe a previous situation or give a specific answer regarding any past experiences with oral communication during her interview. Supplemental ROI at 9-10. 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). In addition, 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). Here, Complainant did not argue, or provide any supporting evidence, that the management officials’ reasons were not worthy of belief or that she possessed plainly superior qualifications. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, color, race or sex, or in reprisal for prior protected EEO activity, when it did not select her for two GS-09 General Supply Specialist positions, under vacancy announcement numbers DLAAvn-16-1729563-MP and DLAAvn-16-1793561-MP. 2020002801 7 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 age, color, race or sex, or in reprisal for prior protected EEO activity, when it did not select her for two positions. 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). 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. 2020002801 8 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. 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation