U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harry E.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Administration for Children and Families), Agency. Appeal No. 2020000739 Hearing No. 570-2015-00546X Agency No. HHSACF02472014 DECISION 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 September 4, 2019 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Senior Management Analysist, GS-14, at the Agency’s Administration for Children and Families (ACF) in Washington, D.C. On August 6, 2014, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race/national origin (Black/African-American), sex (male), color (Brown), and age (48) when: 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. 2020000739 2 1. on March 13, 2014, Complainant learned that he had not been selected for the Supervisory Management Analyst, GS-0343-15, position at the Office Community Services (OCS), ACF; and 2. on April 24, 2014, when Complainant learned he had not been selected for the position of Operations Research Analyst and Chief of Staff, GS-1515-15, Office of Administration, ACF. Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on March 14, 2016, the Agency issued a motion for summary judgment. After receiving an opposition from Complainant, the AJ issued a decision by summary judgment in favor of the Agency. The instant appeal followed. On appeal, Complainant, through counsel, argues that there are inconsistencies in the record that support that there are genuine issues of material fact that warranted a hearing. Specifically, Complainant asserts that he was more qualified for the Supervisory Management Analyst position because he, unlike the Selectee, was a certified Contracting Officer’s Representative (COR), which Complainant asserts was a high-level responsibility assigned for this position as supported by the position description. Complainant further asserts that the position also required working knowledge of Human Resource (HR) practices and procedures which Complainant argues that three out of the four interview panel members determined that he had “extensive” HR experience while two interview panel members determined that the Selectee had “limited” HR experience. Complainant also asserts that the Selecting Official’s determination to recommend the Selectee for the position was influenced by Complainant and the Selectee’s former supervisor, even though the former supervisor was not a part of the interview panel. Regarding the Operations Research Analyst and Chief of Staff position, Complainant argues that the Agency used irregular processes to post and fill this vacancy to ensure that the Selectee was chosen for the position. Specifically, Complainant asserts that the position description was classified after a selection had been made even though a position description must be approved prior to the vacancy posting, and prior to the filling of the position. Complainant argues that the position description posted on the USA Jobs website indicated that supervisory and management experience was required which Complainant stated that the Selectee did not have, although Complainant had over twenty years of supervisory experience. Complainant explains that his second level supervisor (S2), who was the selecting official (SO) for this vacancy, removed the supervisory element from the position description after the Selectee was chosen. Complainant notes that the record contains conflicting testimony by management officials regarding irregularities with the hiring process. Complainant indicates that testimony by the ACF Director of the Office of Workforce Planning and Development (OWPD Director) and the ACF Director of Organizational Development (OD Director) testified that the HR Specialist who processed the vacancy announcement was not an HR Specialist assigned to ACF and S2 did not 2020000739 3 involve the OWPD office in the classification process or the development of the vacancy announcement. Additionally, Complainant indicated that the OWPD Director informed S2 of the classification errors, notified S2 that the position was “uncommon to ACF,” and explained that OWPD’s lack of involvement made the process look “tainted.” However, Complainant notes that the Agency waited until 18 months after the selection process was completed to present an affidavit from an HHS Senior Human Resource Advisor who assisted S2 with certifying the classification process and drafting the job vacancy announcement and who asserted that the proper policies and procedures were followed. ANALYSIS AND FINDINGS 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). 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. 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. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part 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 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020000739 4 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our independent review of the record indicates that the AJ properly determined that the Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for the two position vacancies at issue. Supervisory Management Analyst (SMA), GS-0343-15, Position (Claim 1) Complainant testified that his former supervisor, then Director of Divisional Community Discretionary Programs (DCDP Director), unofficially informed him that he was not selected for the position and that the Director of the Office of Community Service (OCS), the selecting official (SO) (white, female, American, over 40) for the instant position, had chosen the Selectee (African American, light brown, female, over 40). Complainant stated that the DCDP Director indicated that the Selectee was chosen because she was intelligent, writes well, and frames the content of the issues. The record indicates that a four-member interview panel, which included the SO, asked each candidate the same questions, but the panel did not score or rate the candidates. The SO testified that by “general consensus” that the panel determined that Complainant and three other candidates had the best skills and experience for the position. The SO further acknowledged that in addition to consulting with the other panel members, she also consulted with the DCDP Director to receive feedback on Complainant and the Selectee’s work performance and strengths. The record reflects that the DCDP Director was both Complainant and the Selectee’s prior first level supervisor when both candidates worked for the Division of Demonstration Programs while serving as program managers. The SO testified that the DCDP Director informed her that both Complainant and the Selectee were “high performers.” However, the DCDP Director noted that the Selectee had a stronger ability to “make the trains run on time.” We conclude that it was reasonable for the SO to consult with Complainant and the Selectee’s prior supervisor to better assess their work performance abilities. Ultimately, the SO determined that the Selectee was the best qualified candidate for the position. The SO explained that the Selectee had the strongest problem solving, organization, project management and timeliness skills out of the top four candidates. Additionally, the SO indicated that the Selectee had worked with three of the programs managed by the OCS, and the Selectee provided more clear and concise answers that articulated the needs of the OCS better than the other candidates. 2020000739 5 Specifically, the Selectee provided answers as to how she would streamline and improve processes to help make OCS operate like a “well-oiled machine,” and the SO noted that creating efficiencies and improving administrative support for managers were key reasons for which the Supervisory Management Analyst position was created. Consequently, the ACF Acting Assistant Secretary (AAS) testified that he approved the SO’s recommendation that the Selectee was the best candidate for the position. The AAS noted that the SO provided written justification for her selection and the AAS did not find any reason not to approve the SO’s recommendation. We acknowledge that Complainant disputed the SO’s assessment that none of the four candidates were strong in all focus areas for the position. Complainant indicated that he had the requisite HR experience when he served as Senior Management Analyst; he had the requisite procurement experience from his prior work as a supervisor and lead for procurement and acquisition; and his COR certification made him more qualified than the Selectee to fulfill the SMA duties related to COR. Our review of the record reflects that the panelists considered all of Complainant’s strengths in the areas of procurement, HR, and finance and determined the effectiveness of his abilities. Additionally, there is no indication that COR certification was a requirement for the position. The position description states that the Supervisory Management Analyst would work as a COR “and/or” oversee the work of individuals who are CORs. Consequently, COR certification was not a requirement for the position. Notably the Selectee was deemed qualified for the position even though she did not have this certification at the time she applied. However, Complainant’s assertion that the Selectee obtained the COR certification after she was chosen for the position does not support a finding that COR certification was a requirement for the position. We also acknowledge Complainant’s allegation that the SO engaged in favoritism when she chose the Selectee for the SMA position. Specifically, Complainant asserts that the Selectee and the SO had a “close relationship” and the SO “went out of her way to give [the Selectee]” career opportunities. Complainant testified that on one occasion, the SO had encouraged and secured the Selectee’s attendance at an event at the White House after both Complainant and the Selectee had been informed that neither of them would attend the event. A January 3, 2012 email from the SO to the Selectee states, “we have made several pitches for you to attend this event. It looks like you are in! . . . We are all jealous that you will be in the same room with the POTUS . . .” Even if we presume that SO favored the Selectee over Complainant, Complainant has not demonstrated that the SO’s favoritism was based on his race, national origin, sex, color, or age. We note that both Complainant and the Selectee were of the same race, national origin, color and approximate age. Similarly, Complainant has not demonstrated that SO exhibited a discriminatory animus when she did not interact with him or failed to maintain eye contact with him. Operations Research Analyst (ORA) and Chief of Staff, GS-1515-15, Position Complainant’s second level supervisor (S2) (Caucasian, white, male, Eastern and Western European, over 40) testified that he was the selecting official for the position at issue. 2020000739 6 S2 explained that after the position closed, he and the Ethics Officer received a list of qualified candidates, assessed the candidates independently based on the candidates’ skills and qualifications with the job-related duties and tasks, and determined the most qualified applicant. S2 further explained that none of the candidates were interviewed because the both S2 and the Ethics Officer knew the candidates and the Ethics Officer recommended that interviews not be conducted. S2 indicated that he and the Ethics Officer determined that the Selectee (Asian-American, lighter than Complainant, female, under 40) was the best qualified candidate because her application reflected that she had performed or was qualified to perform the job duties list in the position description. Specifically, S2 indicated that the Selectee had earned a Master’s degree in Business Administration, was a member of the bar, and had relevant prior work experience. S2 also noted that the Selectee was the only candidate already serving in a relevant job series, GS- 1515, as she had experience as an Operations Research Analyst, and consequently, the applicant rating sheet reflects that only the Selectee was rated “best qualified” while Complainant and the other candidate were rated “qualified.” Based on these justifications, the AAS testified that he did not find any reason not to approve S2’s decision for choosing the Selectee as the best qualified candidate. In contrast, S2 indicated that Complainant was serving in the GS-343 job series, a general administrative series and he had previously served in a GS-101 social services position. S2 explained that neither of these positions were closely related to the demands of the position for which he applied. S2 also noted that Complainant should not have been on the list of qualified applicants because his transcript did not reflect completion of three semester hours of calculus as required by the position, even though Complainant contests that he had the requisite calculus hours. Nevertheless, S2 stated that because HR had determined that Complainant was qualified, he deferred to HR’s determination that Complainant was qualified and S2 evaluated his application. S2 acknowledged that he informed Complainant, as well as the other non-selected candidate, of his non-selection as a courtesy because he thought it would be better if Complainant heard the news from him rather than by letter. S2 further acknowledged that he informed Complainant that he had not been previously aware of Complainant ever inquiring about senior level positions before Complainant had applied for the position at issue. With respect to the position description approval process, S2 explained he wanted to create a new position to perform Operations Research Analyst functions to address organizational problems by using data analysis and risk-management strategies which required that the selectee have more technical knowledge of statistics, probability, mathematics, and operations research. S2 indicated that he had created a similar position when he previously managed the Office Business Management and Transformation (OBMT) division before becoming a manager with ACF. Consequently, S2 explained that he contacted the HHS Senior Human Resources (Senior HR Specialist) he worked with at OBMT to help him develop a similar position description at ACF. 2020000739 7 S2 indicated that he used a pending Chief of Staff position vacancy as the first Operations Research Analyst position. While the position description used the title of “Chief of Staff,” S2 explained that the primary duties of the position would be those of an Operations Research Analyst and would be classified accordingly. S2 further explained that he worked with the Senior HR Specialist, a Classification Specialist, and a Supervisory Human Resources Specialist (Supervisory HR Specialist) to establish and certify the position description and draft of the vacancy announcement for the Operations Research Analyst and Chief of Staff position. Subsequently, S2 stated he certified the position description before the vacancy announcement was posted even though the Supervisory HR Specialist did not certify the position description until after the vacancy announcement was issued, a process which the Senior HR Specialist indicated was not uncommon. A copy of the position description in the record supports that S2 certified the position on March 11, 2014 and the Supervisory HR Specialist completed the classification/ job grading certification on April 22, 2014. S2 explained that after he had certified the position description on March 11, 2014, several days before the vacancy opened on March 19, 2014, the position was reviewed and forwarded as non- supervisory after the position had closed on March 25, 2014 and after a candidate was selected. As a result, the vacancy had erroneously indicated that the position was a supervisory position and on April 22, 2014 a revised position description was generated to correct this error. Nevertheless, S2 clarified that the ability to supervise was not evaluated as part of the selection process. Consequently, the record and S2’s testimony support that S2 followed the Agency policy requiring that a position description be certified prior to the vacancy positing and prior to the filling of the position. Additionally, while S2 did not consult with the OWPD Director or the OD Director, the record supports that S2 consulted with the Senior HR Specialist, a Classification Specialist, and a Supervisory HR Specialist during the certification and vacancy announcement drafting processes. Furthermore, because the Operations Research Analyst and Chief of Staff position was a newly created position by S2 to address organizational problems with the division, it was reasonable for the OWPD Director to determine that the position was “uncommon” to ACF. We further acknowledge Complainant’s assertion that the Selectee was pre-selected for the position given that the initial job description used for the Operations Research Analyst and Chief of Staff position came from the same division, OBMT, from which the Selectee was hired. However, even if we presume that the Selectee was pre-selected, there is no indication in the record that the pre-selection based on discriminatory animus. In contrast, the record supports that the Selectee was the preferred candidate because of her experience as an Operations Research Analyst and this experience is reflected in the job title of the position at issue. 2020000739 8 After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, national origin, sex, color, or age. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 2020000739 9 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. 2020000739 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 20, 2021 Date
