[Redacted], Genie Y., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 3, 2022

Appeal No. 2020004580 (E.E.O.C. Feb. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genie Y.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004580 Hearing No. 480-2020-00216X Agency No. ARHMPHRYS19FEB00656 DECISION On August 15, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 16, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant worked as a Supervisory Contract Specialist at the Agency’s Mission Installation Contracting Command Center in Fort Bragg, North Carolina. On July 24, 2018, the Agency extended a tentative job offer (TJO) to Complainant for a Contract Specialist position in Korea. Record of Investigation (ROI) at 235. The TJO specified that the offer was contingent upon successfully completing all pre-employment conditions, including a background investigation. 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. 2020004580 2 The TJO made clear that this was not an official offer, and instructed Complainant not to take any irrevocable actions, such as resignation from her current job or relocating, until further notified by the appropriate personnel. Id. at 236. Prior to interviewing for the position, the Agency notified Complainant that no offer would be made to anyone who did not grant permission to the selecting panel to contact her current and former supervisors. Id. at 26. The TJO went on to instruct Complainant to ensure that all contact information was current for current and prior supervisors. Id. Complainant was aware that a final offer was contingent upon positive references, though she asserted that she was only made aware of this after the withdrawal of the offer. Id. at 253. Selecting Official conceded that there was a breakdown in this particular hiring process, as it related to references. Id. at 298. Principal Deputy stated that references are normally checked prior to notifications to Civilian Personnel Advisory Center (CPAC) regarding the selections and alternates for a position. However, this time due to confusion, it was performed after the notification of the selections to CPAC, resulting issuance of Complainant’s TJO. Id. at 283. On August 7, 2018, Administrative Officer requested professional references from Complainant. Id. at 36-7, 239. On that same day, Complainant responded to the request from her personal email account with the names of four individuals who could be contacted. Id. at 239-40. Complainant sent an email to a different person at the Agency, also concerning her pre- employment paperwork stating, “…I do not believe you are receiving my emails from AOL account. Please check your spam folder.” Id. at 38. Administrative Officer asserted that she did not receive a response from Complainant. Therefore, she sent an email to Division Chief of Construction and Supply Division (Division Chief) stating that the Agency required reference checks for Complainant prior to making her a firm offer. Administrative Officer stated that Complainant had not responded to her email, but that three people on her resume were marked as able to be contacted. The names and corresponding contact information were provided to Division Chief. Id. at 42. Of those three references, none of them had a working telephone number, but Division Chief located two of the three and emailed those a reference request. One responded, stating it had been over 10 years since Complainant was employed with that division when she was an intern and that she left for another position shortly after completing the internship. Id. at 44. The other reference contacted was Complainant’s Second-Level Supervisor. Id. at 286-87. To each substantive question, Second-Level Supervisor responded that she was unable to assess Complainant in that area at that time. Id. When asked if she would hire Complainant again, Second-Level Supervisor stated, “It would depend on the job, as certain individuals are better suited to certain positions. [Complainant] will have re-employment rights in her position.” Id. at 287. Second-Level Supervisor clarified that Complainant had only been present at the worksite, on and off, for approximately six weeks before requesting sick leave. Therefore, she did believe she had the basis to make any determination of her abilities concerning the skills on the reference check. Id. at 262. 2020004580 3 Complainant asserts that she “believes” that all relevant officials at the location offering the TJO learned of her disabilities and impairments from Second-Level Supervisor and that Second-Level Supervisor gave her a non-positive reference with the goal of her not being offered the job. Id. at 531. Administrative Officer acknowledged that there were no negative references for Complainant, but the references received were determined to be neutral without substantive information, which is why more were solicited. Id. at 305. Division Chief clarified that positive references were required for that position, as opposed to neutral, because the position in question had a fiduciary responsibility that could obligate both the U.S. Treasury and the funds of the host nation. Id. at 281. Selecting Official stated that the references were concerning. He also, however, was bothered that Complainant was not returning emails to his staff, so he decided to “move on.” Id. at 299. On August 24, 2018, Complainant was notified that her offer of employment was withdrawn. Case File at 223. Administrative Officer informed Complainant that the Agency was unable to verify positive references on her behalf. ROI at 36. Complainant alleged that she believed that the Agency conducted a reference check on her because they already knew about her disability and prior EEO activity and they were looking for a discriminatory reason not to proceed with hiring her. Id. at 542. On April 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), disability (physical and mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on or about August 27, 2018, the Agency issued a withdrawal letter after she had accepted a TJO for the Contract Specialist position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 16, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 10, 2020. 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. The immediate appeal followed. CONTENTIONS ON APPEAL Complainant did not provide a brief in support of her appeal. The Agency asserts that there is no evidence that management officials in the Agency were motivated by “improper considerations” of Complainant’s race, sex, disability, or prior EEO activity when it withdrew the TJO. Agency Brief at 4. 2020004580 4 ANALYSIS AND FINDINGS 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 Emp. Opportunity Mgmt. 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 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”). 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. 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. No such dispute is presented in this case. 2020004580 5 Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability and in retaliation, the Commission now turns to the Agency to provide a legitimate, non-discriminatory reason for rescinding her TJO. In this case, we find that the Agency has provided such a reason. The Agency stated that positive references were necessary for the position in question had a fiduciary responsibility that could bind both the U.S. Treasury and funds of the host nation. The Agency further asserted that Complainant’s references, as checked, were neutral at best, and not positive as required for a formal offer. Moreover, the Agency did not receive Complainant’s response to their request for additional references. Finding that the Agency has met its burden, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Complainant argued that her Second-Level Supervisor informed relevant agency officials of her protected statuses. However, upon review of the record, we find that this is simply not borne out by the facts in the record. The written reference provided by Second-Level Supervisor revealed no such information about Complainant. The recommendation stated that Second-Level Supervisor could not assess Complainant and that she was eligible for rehire in her position. As such, Second-Level Supervisor divulged little about Complainant. Complainant has provided no evidence, whatsoever, outside of pure conjecture, that the Agency was motivated, in any way, by her protected class status. See George v. U. S. Postal Serv., EEOC Appeal No. 01A31214 (July 28, 2003). To the contrary, Complainant, herself, acknowledged that emails from her home email may have gone to spam folders at the Agency. While this is an unfortunate series of events, is not evidence of a pretext for discrimination or retaliation, and Complainant has provided no evidence of pretext. The Agency also conceded that there was a breakdown in the hiring process, as related to references and the TJO. 2020004580 6 Even if mistakes were made, Complainant has not provided any evidence that these deviations were due to her protected classes or activity. We have found that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that she was subjected to unlawful discrimination and that the Agency's explanations are pretext for prohibited discrimination, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 (2000); St. Mary's Honor Ctr., 509 U.S. at 519. Pretext is more than mere supposition or belief that discrimination occurred; mere denials of an Agency's statement does not prove them to be false. Construing the evidence in a light most favorable to Complainant, the Commission concludes that Complainant has failed to show by a preponderance of the evidence that the real reason for the Agency's action was prohibited discrimination. 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 decision implementing the AJ’s finding of 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). 2020004580 7 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. 2020004580 8 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 February 3, 2022 Date