[Redacted], Luigi B., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020002189 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luigi B.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2020002189 Hearing No. 520-2017-00614X Agency No. GSA-16-CO-H-0177 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 4, 2020, final order concerning his 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 him based on his age, color, national origin, race, religion, or sex when it did not select him for a position as a Supervisory Workplace Specialist. 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. 2020002189 2 BACKGROUND At the time of events giving rise to this complaint, Complainant (Hawaiian/Asian/Luso-Asian, Hawaiian, male/gay, Hawaiian religion/Hawaiian religious beliefs, tan, 48) worked as a Program Analyst (GS-12) at the Agency’s Office of Human Resources Management in New York, New York. On May 6, 2016, the Agency opened a vacancy for a Supervisory Workplace Specialist (GS-13) in the Office of Administrative Services (OAS), under vacancy announcement number 1602077MMMP. Report of Investigation (ROI) at 197-202. Complainant stated that he applied for the position on or about May 10, 2016. ROI at 55. Complainant stated that he participated in a 15-minute screening interview with a panel on June 14, 2016, during which he was only asked two questions: (1) Describe your understanding of mobile/collaborative workspaces [the Agency] is creating. Why is it happening? In what ways could it be good for a client? In general, what do you think a shared services approach could offer tenants?; and (2) Tell us about a time you went above and beyond the call (of duty) to assist a client, what steps did you take and what was their reaction? ROI at 57, 62, 66. The Selecting Official (SO) (USA, Mixed race, male) stated that he did not participate in the first round of interviews, and that Complainant was not referred to the second round. ROI at 134. Complainant stated that he was informed of his non-selection on July 29, 2016, and that he was only informed that he was not selected because the selectee (S1) (age 50, White, unknown national origin, Caucasian, unknown religion, male, unknown sexual orientation) was more qualified. ROI at 55, 59. On November 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hawaiian/Asian/Luso-Asian), national origin (Hawaiian), sex/sexual orientation (male/gay),2 religion (Hawaiian religion/Hawaiian religious beliefs), color (Tan), and age (48) when on July 29, 2016, Complainant learned that he was not selected for the Supervisory Workplace Specialist position, GS-301-13, under Vacancy Announcement Number 1602077MMMP. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency’s unopposed motion for a decision without a hearing filed on July 19, 2019, and she issued a decision without a hearing on December 27, 2019. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020002189 3 As an initial matter, the AJ noted that Complainant stated that he was on leave and unable to respond to the Agency’s Motion for Summary Judgment until he returned to work. However, Complainant never filed a response. As such, the AJ determined that Complainant had abandoned and failed to prosecute his complaint. In the alternative, the AJ found that there were no genuine disputes of material fact, and that Complainant did not establish a prima facie case of discrimination because the responsible management officials were not aware of his protected categories. However, the AJ found that even if Complainant could establish a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its action. The AJ noted that the candidates’ responses were evaluated using the same criteria, and that Complainant received the lowest score of all candidates during the first round of interviews. The AJ found that S1’s ability to provide full and thoughtful answers matching the evaluation criteria led to his advancement to the second-round interviews, and ultimately to his selection and promotion. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and requested an extension to file his appeal brief. The Commission granted an extension through April 6, 2020. Complainant submitted a statement in support of his appeal on April 5, 2020, and simultaneously requested another extension. Complainant filed another statement on May 4, 2020. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that the two interview questions were not in accordance with the Agency’s policy for conducting a Screening Panel Interview, and that the questions should have been limited to competency-based questions. Complainant also states that he discovered from another employee that OAS has a “penchant for hiring mostly white employees” and is “hostile” towards lesbian, gay, bisexual, transgender (LGBT) employees. In support of this assertion, Complainant attached a group photo of OAS employees as evidence. Regarding S1’s selection, Complainant argues that one of the OAS management officials is a former police officer, “which might have been a reason” why S1 was selected, even though his prior experience in the private sector had little to do with the basic requirements of the position, and he previously worked for the Office of Mission Assurance. Complainant asserts that the Agency’s demographic data shows that it has not increased its efforts in changing the gender and race/ethnicity demographics statistics, despite some categories, such as Native Hawaiians/Pacific Islanders, being significantly lower than other categories. Complainant notes the “almost insignificant number of Hawaiian/Pacific Islanders in the Agency.” Complainant also argues that the selection process was unfair, due to an “unethical” hiring manager, who engaged in favoritism and made a preselection. 2020002189 4 He also claims that the manager was supported by a “compliant” Human Resources department. Complainant requests that the Commission reverse the Agency’s final order and award him the position with backpay and appropriate relief. Agency’s Contentions The Agency notes that when the Commission granted Complainant’s request for an extension to file his appeal brief, he was notified that no further extensions would be granted. The Agency states that since Complainant filed a second brief on May 4, 2020, which was one day prior the Agency’s deadline to file a response brief, and without a granted extension, it would not address the arguments in that brief. The Agency asserts that the AJ properly issued a decision without a hearing because Complainant did not respond to its Motion for Summary Judgment and that there were no genuine disputes of material fact. The Agency states that the AJ found that since “Complainant’s sexual orientation, race, color, national origin, and religion were unknown to each of the interviewing officials at the time of the interview and the decision not to advance the Complainant to the second round interviews for the vacancy, it is impossible for Complainant to demonstrate the discriminatory intent required to establish a prima facie case based on any of the respective protective categories.” The Agency argues that Complainant was given ample opportunity to respond to its Motion for Summary Judgment and produce any and all evidence to refute its undisputed facts, but he chose to forego any response. 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”). 2020002189 5 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. 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, we find that Complainant did not identify any genuine disputes of material fact. While Complainant argued that OAS has a “penchant for hiring mostly white employees and is hostile towards LGBT employees” and provided a group photo of OAS employees as evidence, Complainant only alleged that the composition of the OAS employees showed that OAS managers had a penchant for hiring mostly white employees or that they were hostile to LGBT employees, and he did not provide supporting evidence. Complainant also asserted that the hiring manager was “unethical” and supported by a “compliant” Human Resources department, without any evidence. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). As such, we find that the AJ properly issued a decision without a hearing. Complainant’s briefs The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). 2020002189 6 Here, Complainant requested, and was granted, an extension to file his appeal brief, and we find that his initial statement submitted on April 5, 2020, was timely. However, Complainant submitted another brief on May 4, 2020, which was beyond his deadline, and filed without an approved extension. Accordingly, we will only consider the arguments in Complainant’s timely brief filed on April 5, 2020. 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, 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. 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 his 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, national origin, race, religion, and sex/sexual orientation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. SO stated that he was part of the second-round selection panel and that he selected S1 based on his interview responses regarding his strong organization and supervisory skills. SO stated that Complainant was not referred past the first round by the initial panelists. ROI at 134-6. A panel member (PM1) (age 45, Brown, U.S., African American, female) stated that Complainant scored the lowest out of all the candidates, and that his responses lacked knowledge and the examples he provided lacked support. ROI at 153. The second panel member (PM2) (age 57, White, U.S., Caucasian, female) stated that Complainant did not respond completely to the questions, and that he demonstrated little understanding regarding the mobile/collaborative workplaces that the Agency was creating. PM2 noted that Complainant’s answers were “somewhat confusing and all over the place.” ROI at 164. 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 2020002189 7 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 the panelists did not follow the Agency’s policy for conducting a Screening Panel Interview, and that the questions should have been limited to competency-based questions. However, Complainant did not provide any evidence to show that the panelists failed to follow the Agency’s policy beyond his own assertions. To the extent that Complainant argued that the Agency’s demographic data establishes pretext for discrimination, the Commission and the courts have held that, while statistics are relevant, statistics alone, especially if they are generalized and over broad, will not be sufficient to prove pretext in individual complaints of disparate treatment. See Stevens v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 01970848 (Aug. 14, 1997); Talley v. U.S. Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983), cert denied 466 U.S. 952 (1984); Hudson v. IBM Corp., 620 F.2d 351, 355 (2d Cir.), cert denied 449 U.S. 1066 (1980). Even crediting Complainant’s contention that the Agency has an “almost insignificant number of Hawaiian/Pacific Islanders,” we find that this does not prove that the panelists’ reasons for not advancing Complainant past the first round of interviews is not worthy of belief. While Complainant alleged favoritism and preselection, the Commission has found that even if preselection occurred, it would not be unlawful unless Complainant can show that the preselection was driven by discriminatory animus. See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Here, Complainant argued that one of the OAS management officials is a former police officer, “which might have been a reason” why S1 was selected; however, even if true, this would not be evidence of an unlawful discriminatory animus. 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). In this case, Complainant argued that S1’s prior experience in the private sector had little to do with the basic requirements of the position, and that he previously worked for the Office of Mission Assurance. However, Complainant did not argue, nor show, that his qualifications were plainly superior to S1’s qualifications. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on age, color, national origin, race, religion, or sex/sexual orientation when it did not select him for a position as a Supervisory Workplace Specialist. 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 2020002189 8 against him based on his age, color, national origin, race, religion, or sex/sexual orientation when it did not select him for a position as a Supervisory Workplace Specialist. 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. 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). 2020002189 9 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 24, 2021 Date