[Redacted], Martine L., 1 Complainant,v.Charlotte A. Burrows, 2 Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2020002640 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Martine L.,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2020002640 Agency No. 2015-0071 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 14, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., in which the Agency adopted a contract Administrative Judge’s decision without a hearing finding no discrimination.3 For the following reasons, the Commission AFFIRMS the Agency’s final order. 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. 2 As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority issuing this decision. For the purposes of this decision, the term “Commission” or “EEOC” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to EEOC in its role as the respondent party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in-house processing and resolution of discrimination complaints. The Chair has abstained from participation in this decision. 3 A case involving an Agency employee who requests a hearing is held before a contract Administrative Judge who is not employed by the Agency. See Logan-King v. Equal Emp’t Opportunity Comm’n, EEOC Request No. 05A10082 (Jan. 3, 2002). 2020002640 2 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 race, or in reprisal for protected EEO activity, when it did not select her as a Lead Equal Employment Investigator. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior EEO Investigator (Systemic), GS-12, at the Agency’s Atlanta, Georgia District Office. On April 15, 2015, the Agency opened a vacancy for a Lead Equal Employment Investigator (Systemic), GS- 13, advertised under Vacancy Announcement Number M15-LAX-1381334-082-TMD, in the Los Angeles District Office. Report of Investigation (ROI) at 40-43. Complainant submitted her application on April 22, 2015. ROI at 45-51. Complainant stated that she was interviewed by a three-person panel on June 22, 2015. ROI at 9. The interview panel prepared an outline, but not specific questions, and then assigned points for each section based on the candidates’ responses to the interview topics. The scores were then sent to the Selecting Official (SO) (age 65, White). ROI at 92-93. SO, stated that, in addition to conducting the interviews, the panelists sought references from the candidates’ directors and a Supervisory Statistician (SS) (age 64, White) in the Office of Research Information and Planning (ORIP). SO stated that he shared the panelists’ rankings with the District Director (DD) (age 61, Hispanic) of the Los Angeles District Office and they discussed who should be offered the position. SO stated that he and DD discussed the top-scoring candidate (C1) and another candidate (C2) (age 35, White), who were already located in the Los Angeles District. SO stated that DD preferred a candidate from within the Los Angeles District because she felt that she had good internal candidates. SO stated that DD thought that C2 was the stronger candidate and he selected C2. SO stated that Complainant was ranked third by the interview panel. ROI at 76-78. Complainant stated that she was informed of her non-selection on July 22, 2015. ROI at 10. On November 13, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (58), and in reprisal for prior protected EEO activity (Agency Complaint No. 2014-0046), when she was not selected for the position of Lead Equal Employment Investigator (Systemic) (GS-13), advertised under Vacancy Announcement Number M15-LAX-1381334-082-TMD, in the Los Angeles District Office. 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 Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted 2020002640 3 the Agency’s December 1, 2017 motion for a decision without a hearing and issued a decision in favor of the Agency on January 15, 2020. The AJ found that Complainant’s cited evidence did not raise any genuine disputes of material facts and that the evidence did not support that Complainant was the plainly superior candidate. The AJ noted that the evidence showed that Complainant was not one of the top two scoring candidates and that SO made his selection based on DD’s input on the top two candidates. The AJ also determined that Complainant did not raise a dispute as to the Agency’s stated reasons nor show that the Agency’s decision was motivated by age, race, or reprisal. The AJ noted that the preference was for a local candidate, and that the location of the candidates and a preference to select someone within the local district did not raise an inference of an improper motive. The AJ also found that any alleged conflicts in the record did not raise a material dispute, such as whether witness recollections were clear that Complainant’s director was contacted. The AJ further found that the cat’s paw theory was not applicable because there was no evidence that SO directed, influenced, or acted as a conduit in the interview panelists’ actions. The AJ concluded that, taking all the inferences in Complainant’s favor, her claims of unlawful discrimination based on age or race, or in reprisal for protected EEO activity, did not survive summary judgment. 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 submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that she was “far and away” better qualified than C2. Specifically, Complainant asserts that C2 did not have experience conducting systemic investigations, while she spent eight years doing mostly systemic investigations. Complainant states that, in July 2017, C2 admitted to her at a conference that he had just started a systemic case, a full two years after his selection. In addition, Complainant asserts that a written statement by SS notes that C2 had not worked with ORIP, and that Complainant was the only one of the seven candidates who had worked with ORIP. Complainant states that she also held the position as Coordinator for the Systemic Unit in the Atlanta District Office, and that C2 did not work as a Coordinator. Complainant argues that the record is not clear because there is no indication that her immediate supervisor was contacted for input. Complainant also notes that SO stated that there were issues between Complainant and the Regional Attorney (RA) in the Atlanta District Office but did not give any details of these alleged issues. Complainant states that a hearing is necessary to obtain testimony from RA, the Atlanta District Director, and Complainant’s supervisors to determine if 2020002640 4 any “alleged issues” were the reason for her non-selection. Complainant states that, while SO stated that he had concerns with the slow pace of one of her systemic investigations, she never failed to follow RA’s instructions. Complainant asserts that, after RA retired, the investigation went in a different direction and proceeded at a much faster pace. Complainant asserts that a hearing to obtain testimony from RA, and RA’s successor, is necessary to determine if the slow pace of the investigation was attributable to Complainant’s mismanagement. Complainant argues that SO discriminated against her based on her age and race, and that SO has never selected an African American for a Lead Investigator position, and rarely selected an individual who was over 50 years old. Complainant also alleges that SO retaliated against her for her prior EEO complaint, which was settled in November 2014. Complainant notes that this vacancy was the first one she applied for since the settlement. Complainant asserts that, while the interview panel gave her a low score in time management, her experience should have reasonably warranted her application being forwarded to the Los Angeles Director for consideration, and that SO did not forward her application. Complainant requests that the Commission reverse the Agency’s final order and remand her complaint for a hearing. Agency’s Contentions The Agency argues that the AJ correctly determined that Complainant had failed to demonstrate that her non-selection was the result of a discriminatory and/or retaliatory motive. The Agency notes that the record conclusively demonstrates that the Agency selected C2 for the position because he was ranked higher by the interview panel and was highly recommended by DD, who expressed a preference for an internal district candidate, while Complainant was ranked third by the independent interview panel and was not located within the Los Angeles District. The Agency asserts that Complainant failed to dispute the proffered reasons, and instead, continues to challenge the selection criteria, particularly the interview process. While Complainant argued that she was vastly superior, the Agency argues that she failed to make any such showing. For example, Complainant relied upon her additional years of experience as an investigator, but the Commission has explicitly held that mere length of service does not make an individual more qualified. In addition, the Agency states that Complainant’s contention that the interview panel failed to contact the Atlanta District Office Director is insufficient to raise a material dispute of fact or to create an inference of pretext to rebut the proffered reasons for Complainant’s non-selection. The Agency notes that the interview panel conducted its process by formulating a neutral and uniform metric scoring process and, based upon the candidate responses to the interview questions, the panelists ranked C2 higher than Complainant. The Agency states that C2’s ranking was, in part, based upon his outstanding performance appraisal and responses which highlighted his work with systemic cases; in contrast, Complainant’s responses were unclear with respect to how she managed her workload. 2020002640 5 The Agency also argues that Complainant failed to address the fact that DD preferred hiring C2 because he resided within the geographic district. The Agency asserts that Complainant has not offered any sworn statements or other documents to contradict the explanations of the Agency officials. Rather, Complainant offered nothing but her own disagreement with the selection to dispute the veracity of the legitimate nondiscriminatory reasons, and her disagreement alone is insufficient to survive summary judgment. The Agency states that, in support of her reprisal claim, Complainant offered only a conclusory contention that SO’s decision to select another candidate more than eight months after Complainant’s earlier EEO complaint must have been in reprisal for the earlier complaint. However, the Agency urges that a temporal nexus between two actions alone is insufficient to constitute a causal connection. Further, the Agency asserts that Complainant failed to show that any of the members of the interview panel or DD had knowledge of Complainant’s prior protected conduct. The Agency asserts that SO was guided by the rankings provided by the panelists and DD’s preference for a candidate located within the Los Angeles District. 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”). 2020002640 6 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, Complainant argued that a hearing was necessary to obtain additional testimony regarding any “alleged issues” with RA as a reason for her non-selection, and whether the slow pace of an investigation was due to Complainant’s mismanagement. However, we find that these are not material facts. While SO noted that there were “issues” between Complainant and the Atlanta RA, and that he had concerns about the slow pace of an investigation, it is undisputed that Complainant was ranked third by the interview panel and that a higher-ranked candidate was recommended by DD. The record shows that the interview panel gave C1 a score of 86, C2 a score of 75, and Complainant a score of 71. ROI at 83. DD stated that she and SO only discussed C1 and C2, and SO stated that DD thought that C2’s education made him likely to quickly grasp systemic issues and she was impressed with his work as an investigator. ROI at 115, 76. We note that Complainant did not allege any disputes related to the interview panelists’ scores for the candidates or DD’s recommendation of C2’s selection. 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 2020002640 7 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, 715-16 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age and race, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for not selecting Complainant. SO stated that he did not select Complainant, in part, because she was ranked third by the interview panel. ROI at 78. The interview panelists stated that Complainant was not clear in explaining how she managed her workload and struggled in her presentation of the cases that she investigated and did not communicate a lot of experience regarding systemic case development. ROI at 93, 99. SO also stated that he did not select Complainant because DD “strongly recommended” another, higher-ranked candidate. ROI at 78. DD stated that, when SO asked for input on C1 and C2, she asked the Fresno Director (FD) (age 46, Caucasian/Mexican) for her opinion because FD had supervised both candidates. DD stated that FD informed her that both were excellent investigators, but that C2 was better qualified because he worked on the Commissioner’s Charges and other systemic work. ROI at 115-16. FD confirmed that she provided input for C1 and C2, and she stated that C2 was “ready for this type of position.” ROI at 122. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. 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 “far and away” the superior candidate because C2 did not have experience conducting systemic investigations or as a Coordinator for a Systemic Unit, and he had not worked with ORIP. However, even crediting Complainant’s contention that she had superior qualifications based on her experiences in conducting systemic investigations, as a Coordinator for the Systemic Unit, and work with ORIP, we find that a candidate’s technical experience was only one consideration for this selection. Specifically, the interview panel considered the following factors when rating the candidates: (1) Time Management and Workload Management; (2) Case Development; (3) Intra-District/Inter-District Collaboration Coordination; (4) Team Leadership, Training, Development of Investigators; (5) Performance Rating; and (6) Outreach Experience. ROI at 267. The record shows that the panel gave Complainant a slightly higher score of 23 for Case 2020002640 8 Development, as compared to C2’s score of 22. As noted by Complainant on appeal, the interview panel gave her a “low” score in Time Management of 15, which she did not challenge; and C2 received a score of 17. ROI at 278, 276. However, we note that Complainant did not argue, much less establish, that her qualifications were plainly superior in the remaining categories that the panelists used to assess the candidates. As such, we find that Complainant did not demonstrate pretext for discrimination because she did not show that she possessed plainly superior qualifications for the Lead Equal Employment Investigator position. In addition, even if Complainant and C2 were equally qualified for the position, 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, 252-59); Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). 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, Complainant made allegations of unlawful discrimination by SO, without presenting any evidence. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age or race, or in reprisal for protected EEO activity, when it did not select her as a Lead Equal Employment Investigator. 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 age or race, or in reprisal for protected EEO activity, when it did not select her as a Lead Equal Employment Investigator. 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 2020002640 9 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). 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 2020002640 10 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: /s/Rachel See ______________________________ Rachel See’s signature Rachel See Executive Officer Executive Secretariat August 12, 2021 __________________ Date