[Redacted], Maren P., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022001262 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maren P.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2022001262 Hearing No. 440-2020-00256X Agency No. 20-05-038 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 2, 2021, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency’s Office of Federal Contract Compliance Programs (OFCCP), Denver District Office, in Denver, Colorado and a former Agency employee from March 1997 to February 2013. On December 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on religion (Jewish), disability (anxiety, depression, glaucoma, 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. 2022001262 2 hyperthyroidism, phobias, and thyroid eye disease), age (52), and in reprisal for prior protected EEO activity when: 1. On or around September 19 or 20, 2019, Complainant was not selected to the: a. Equal Opportunity Specialist (EOS) position advertised under Vacancy Announcement MS-19-DAL-OFCCP-350 (Vacancy 1); and b. EOS position advertised under Vacancy Announcement DE-19-DAL-OFCCP- 0156 (Vacancy 2); and 2. On or around December 24, 2019, Complainant received notification that she was not selected to Vacancy Announcement No. MS-19-DAL-OFCCP- 387 (Vacancy 3). 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual. Regarding Vacancy 1, the AJ found that the selecting official (SO), OFCCP Regional Director, had a strong preference for applicants who had recent, relevant work experience. Pursuant to the collective bargaining agreement between the Agency and the union, which required SO to interview any merit-based applicants who were current Agency employees, SO considered the two applicants who were the only current Agency employees on the certificate of eligibles list (cert list) provided. SO was aware of both candidates because she had interviewed them for another position that was advertised around the same time, though one of the candidates had already accepted another position by the time SO conducted interviews for Vacancy 1. The selectee was the only person SO interviewed for Vacancy 1, and she had very recent experience as a GS-12 EOS, had investigated a claim of systemic discrimination in hiring and compensation, and was familiar with new Agency procedures that had been significantly redeveloped in 2017, several years after Complainant’s departure from the Agency. The AJ found that Complainant’s lack of recent relevant work experience was significant to SO and was the reason she was not interviewed. Regarding Vacancy 2, SO only considered cert lists containing applicants currently employed by the federal government and disabled veterans. Complainant did not appear on any cert lists for Vacancy 2 because she had no prior military service and was not a current Agency employee. SO did not select anyone for this vacancy. Regarding Vacancy 3, which advertised GS-7 and GS-9 EOS positions, the AJ found that SO requested several cert lists for both grade levels. Each position included a “merit staffing” cert list and cert lists containing applicants eligible for the disabled veterans’ preference and 2022001262 3 Schedule A. Complainant’s name appeared only on the GS-9 EOS merit staffing cert list. SO could select applicants to interview from any of the provided cert lists and decided, based on her prior practice, to interview applicants who were current federal employees and applicants from the disabled veterans and Schedule A cert lists. Complainant was not eligible for any preference and was not a current employee, and the AJ concluded that is why she was not selected. SO ultimately did not select anyone for the open positions. The AJ determined that Complainant failed to show that the reasons for her nonselections were pretext for discrimination or retaliation. The AJ found that the record did not indicate Complainant was “clearly superior” to the selectee for Vacancy 1 or those interviewed for any of the positions. The AJ found that SO’s process of choosing who to interview from what cert lists was likewise not pretextual. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the nonmoving 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 5, 2015) (providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. Complainant’s bare assertions are insufficient to create a genuine issue of material fact requiring a hearing, and the record evidence she provides on appeal does not support her arguments that SO was lying in her statements or was otherwise inconsistent in her statements. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2022001262 4 CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding 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). 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. 2022001262 5 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 17, 2022 Date