[Redacted], Farah S., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020000432 (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 Farah S.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000432 Hearing No. 450-2015-00188X Agency No. ARRRAD14JUL02543 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 August 15, 2019, 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 or sex, or in reprisal for protected EEO activity when it did not select her for a promotion. 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. 2020000432 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Supply Specialist (GS-11) at the Agency’s Red River Army Depot in Texarkana, Texas. On June 5, 2014, the Agency opened a vacancy for a Supervisory Inventory Management Specialist (GS- 12), posted under vacancy number SWDX140985841131586. Report of Investigation (ROI) at 96-103. On or about July 8, 2014, Complainant learned that she was not selected for the position. ROI at 138-9. On July 23, and 29, 2014, Complainant contacted the selecting official (SO) (age 56, male) to request a meeting with the panel members to discuss her non-selection; SO declined and only provided Complainant’s score and ranking. ROI at 152-3. Complainant stated that the selectee (S1) was male and approximately 47 years old. ROI at 233-4. On October 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (61), and in reprisal for prior protected EEO activity (prior EEO complaints filed in 2005, 2006, and 2009) when, on July 7, 2014, it did not select her for the position of Supervisory Inventory Management Specialist (GS- 12), posted under vacancy number SWDX140985841131586. 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. On June 11, 2019, the AJ assigned to the case issued a Notice of Intent to Issue Summary Judgment. The AJ stated that Complainant established a prima facie case of discrimination based on her age and sex, but not in reprisal for protected EEO activity. The AJ then determined that the Agency articulated a legitimate, nondiscriminatory reason in selecting S1 as the most qualified candidate, and that Complainant did not produce evidence showing that her qualifications were plainly superior. Complainant submitted a response to the AJ’s notice, and the AJ issued a decision without a hearing on July 11, 2019, finding that summary judgment was appropriate because the record showed that Complainant offered no evidence proving that the Agency’s articulated reasons for its action was a pretext for discrimination. 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 provided a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Complainant argues that there were “several” irregularities which disadvantaged her and created a less than fair selection process. Complainant asserts that the Commanders Policy Statement (CPS) requires that selections be made by panel members who are subject matter experts, and that the panel members selected by SO were “far short of possessing” subject matter expert 2020000432 3 knowledge. Complainant also argues that the panel members were “biased” because they all worked under the supervision of SO, who provided them with copy of Complainant’s resume which differed from the one she submitted for the job announcement. Complainant asserts that the position description for the job announcement did not contain all the “major subordinate missions and functions.” Complainant also argues that the transcript of the fact-finding conference is missing vital testimony. Specifically, Complainant states that there is no testimony regarding the CPS or testimony from a panel member that she was provided the wrong resume and was not knowledgeable about the vacant position. Complainant states that it appeared that the court reporter’s recorder malfunctioned. Complainant also asserts that she informed the EEO office about missing pages from the ROI, which was not resolved. Complainant argues that absent these irregularities, her resume would have scored higher for her supervisory experience and her experience in functional areas. Complainant asserts that the Agency’s reasons for selecting S1 was a mask for discrimination and that she was the clearly superior candidate. Complainant also states that SO made comments to dissuade her interest in the position, such as SO did not think that Complainant wanted the position and that S1 was a Priority Placement Program referral, which was untrue. Complainant notes that she obtained additional information about her non-selection from a Freedom of Information Act (FOIA) request. With her appeal, Complainant provided two copies of her resume, in support of her allegation that SO provided a different version to the panel members; and an email to the EEO office about missing pages from the ROI. Agency’s Contentions The Agency responds that Complainant’s claim of the wrong resume is without merit because the two resumes are nearly identical, except for a difference in font and address at the top. The Agency also notes that Complainant relies on new evidence, which should be stricken since it is being first provided at the appeals stage.2 The Agency asserts that even if the court reporter kept starting and stopping, there is no indication that there is any missing testimony. The Agency argues that Complainant’s attempts to show irregularities do not show pretext for discrimination. 2 As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 at Chap. 9, § VI.A.3. (Aug. 5, 2015). With her appeal, Complainant submitted two copies of her resume, in support her of allegation that the copy that SO provided to the panel members differed from the version she submitted with her application. While it is not clear if Complainant obtained the allegedly different resume that SO provided to the panel members through her FOIA request, we will exercise our discretion to consider this new evidence on appeal. 2020000432 4 The Agency notes that while Complainant asserted that she possessed superior qualifications, she did not present any facts to support her assertion. The Agency states that S1 had six years of related supervisory experience, while Complainant only had six months of supervisory experience. The Agency notes that it is undisputed that S1 had a substantially substantive position for five years at the GS-12 level. The Agency states that management officials provided legitimate, nondiscriminatory reasons for selecting S1, and that Complainant did not provide any evidence that the reasons were pretexts for discrimination. The Agency asserts that Complainant’s allegations of irregularities are not supported by any proof or citation of the record. The Agency requests that the Commission affirm the AJ’s decision without a hearing. 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 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 law”). 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). 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. 2020000432 5 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). On appeal, Complainant argued that it appeared that the court reporter’s recorder malfunctioned and that there were missing pages from the ROI. However, we note that Complainant did not provide any supporting evidence that the court reporter’s recorder malfunctioned, leading to an incomplete transcript of the fact-finding conference. There is no indication that there is any missing testimony from the fact-finding conference and we find that the ROI does not have any missing pages. We carefully reviewed the record and find that it is adequately developed and complete. 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 did not argue that there were any genuine disputes of material fact. However, to the extent that Complainant alleged that there is a dispute regarding the resume that SO provided to the panel members, we note that Complainant did not specify the differences in the resumes, and we find that the contents of the two resumes are the same. In addition, a review of the record does not reveal any genuine disputes of material fact. As such, 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. Dep’t 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. 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). 2020000432 6 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age and sex, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for not selecting Complainant. SO stated that he selected the top candidate that was referred by the panel, S1, who had the highest score. ROI at 276, 288. The three panelists testified that they gave S1 higher scores due to his extensive supervisory experience. Specifically, the first panelist (P1) (age 50, male) stated that S1 had approximately six years of experience, while Complainant only had six months. ROI at 158. The second panelist (P2) (age 65, female) stated that she scored S1 higher than Complainant because he was “very strong in supervision.” ROI at 338. P2 stated that she was aware that Complainant received temporary promotions to a supervisory position, and while she found that Complainant was qualified for the position, S1 was a better candidate. ROI at 344. P2 further explained that it was difficult to determine how long Complainant did anything in particular, so P2 determined that the aggregate of all of Complainant’s acting supervisory experience was about nine months to one year, while S1’s prolonged supervisory experience was clear and enough to obtain the maximum points for the supervision category. ROI at 162. The third panelist (P3) (age 54, male) also stated that S1 had greater experience due to his approximately six years of supervisory experience, as compared to Complainant’s cumulative experience of less than one year. ROI at 167. In addition, the record contains the panelists’ scoring sheets, which show that each panelist gave S1 the maximum score of “4,” and Complainant a score of “2,” for the supervisory category. ROI at 133-5. 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). On appeal, Complainant argued that there were “several” irregularities in the selection process. Complainant asserted that the CPS requires that selections be made by panel members who are subject matter experts, and that there is no testimony regarding the CPS. However, SO testified that the CPS only stated that a panel was required when filling positions that report directly to the Chief of Staff, Deputy Commander, or Commander, and that there was no requirement to use a panel for a position at this level. SO stated that he elected to use a panel to be “fair and unbiased.” In response to Complainant’s claim that the panelists were not subject matter experts, SO stated that the panelists had a “vast knowledge of the Director of Public Works and what that position entails.” ROI at 301-2. Complainant argued that the panel members were “biased” because they all worked under the supervision of SO; however, Complainant provided no evidence to show any bias from the panel members. 2020000432 7 While Complainant asserted that the position description for the job announcement did not contain all the “major subordinate missions and functions,” SO testified that the two branches were added as part of a realignment, and that they were in the process of updating the position description. ROI at 295-6. While Complainant asserted that this was done purposefully to disadvantage her, she did not provide any evidence to support her assertion. Complainant also argued that the transcript of the fact-finding conference was missing vital testimony. While Complainant asserted that there was no testimony regarding the CPS, as noted above, SO provided a response. In addition, Complainant stated that the transcript was missing P2’s testimony that she was provided the wrong resume and was not knowledgeable about the vacant position. However, a review of P2’s testimony shows that when she was presented with the copy of Complainant’s resume during the fact-finding conference, P2 stated that it was not the same as the one she originally reviewed due to “handwriting” on the resume that was not hers.3 P2 stated that while she was not certain, the resume was probably the version she reviewed. ROI at 335. In addition, P2 responded that she had enough information, in response to the question, “Do you feel like you had enough qualifications to judge the resumes for the position that you were asking to give a recommendation on?” ROI at 343. Complainant also stated that SO made comments to dissuade her interest in the position, such as SO did not think that Complainant wanted the position, and that S1 was a Priority Placement Program referral, which was untrue. However, we find that there is no evidence that SO attempted to dissuade Complainant from applying for the position. SO testified that he asked Complainant if she was interested in the position because the pay was “not that much different” because he was not sure why someone would want a position if it would not provide more money. ROI at 312-3. SO also testified that he informed Complainant that S1 was not on the Priority Placement list, and that if he were, SO would not have received a “register” from the Civilian Personnel Advisory Center for the vacancy. ROI at 303-4. 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 argued that she was the “clearly superior” candidate, and that absent the alleged irregularities, she would have received higher scores. However, we find that Complainant did not provide evidence showing that there were any irregularities with the selection process. 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 Serv., EEOC Appeal No. 0120110338 (March 23, 2011), citing Tex. Dep’t of Cmty. 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). 3 The EEO Investigator stated that it was his handwriting on the resume. ROI at 335. 2020000432 8 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. Tex. Dep’t of Cmty. Affairs, 450 U.S. at 259. In this case, even assuming that Complainant and S1 were equally qualified for the position, there is no evidence of unlawful discrimination. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age or sex, or in reprisal for protected EEO activity, when it did not select her for a Supervisory Inventory Management Specialist position. 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 race or sex, or in reprisal for protected EEO activity, when it did not select her for a promotion. 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. 2020000432 9 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. 2020000432 10 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