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

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2020005452 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Petronila B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005452 Hearing No. 420-2017-00101X Agency No. ARANAD16MAY01847 DECISION On September 25, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning Complainant’s 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Management Specialist, GS-9, at the Agency’s Anniston Army Depot in Anniston, Alabama. On June 17, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and age (40) 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. 2020005452 2 1. On May 12, 2016, she became aware that she was not selected for the position of Maintenance Management Specialist, GS-1101-11, Job Announcement Number SCAH162147071643897. 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 October 10, 2019, motion for a decision without a hearing and issued a decision without a hearing on November 15, 2019. In its motion, the Agency argued that there were no genuine issues of material fact in dispute because the record clearly established that Complainant was not selected because her resume did not specifically mention LEAN Six Sigma experience while the Selectee’s did and therefore, she did not score as highly as the Selectee on the scoring matrix used to evaluate candidates. The scoring matrix consisted of a number of categories. See Report of Investigation (ROI) at 151-53. The matrix included a category for “Process Improvements/LEAN”, for example, that was further described as “Ability to participate in LEAN and Problem-Solving Corrective Action team events to resolve production and systems process issues and implement improvements…” See id. at 152. The “Position Unique Skills” category, of the matrix, included subsets for “serve as COR [contracting officer representative] for systems projects and implementation as needed,” and “Analyze data from automated management systems … to determine impact on the maintenance mission.” See ROI at 152-53. The AJ concluded that there were no genuine disputes of material fact and that Complainant had not established that she was subjected to discrimination when she was not selected for the Maintenance Management Specialist position. The AJ’s decision became the Agency’s final action when it did not issue a final order within 40 days of receipt of the AJ’s decision.2 29 CFR §1614.109. CONTENTIONS ON APPEAL As an initial matter, Complainant argues that the Agency’s February 16, 2021 appeal brief, submitted five months after her appeal was filed, is untimely and should not be considered pursuant to 29 C.F.R. § 1614.403. The Agency contends that the Anniston Army Depot did not receive notice of Complainant’s appeal until February 3, 2021. It is undisputed that the Commission sent the Notice of Appeal to the Agency’s address of record. The Agency’s assertion that it failed to timely notify a particular facility, reflects an internal Agency error and, is not sufficient justification to waive the time limit. Consequently, the Agency’s response brief will not be considered. 2 Thereafter, on February 11, 2021, the Agency issued a final order adopting the AJ’s finding of no discrimination. 2020005452 3 On appeal, Complainant contends that the Agency’s explanation for her non-selection, that her resume was not scored as highly as the Selectee’s, is a pretext for discrimination. Specifically, Complainant argues that her qualifications are superior to the Selectee’s and should have received a higher score. She also asserts that the Selecting Official’s (SO) reliance on knowledge of LEAN Six Sigma methods in scoring the candidates’ resumes was not mentioned in the job announcement, unfairly disadvantaging Complainant and enabling subjective manipulation of scoring. ANALYSIS AND FINDINGS 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 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 Chapter 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 will first 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. 2020005452 4 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 argues that the issue of whether knowledge of LEAN systems was, in fact, a valid criteria to be included in the scoring matrix raised a genuine dispute that should have precluded summary judgment. Complainant asserts that the Agency’s failure to produce the scoring matrices relied on in previous selections raises a genuine dispute as to whether the reliance on LEAN was fairly applied. However, Complainant has not shown the matter of the Agency’s reliance on LEAN systems to be a genuine issue of material fact. Even if there were some genuine dispute over whether the Agency has consistently relied on knowledge of LEAN systems in other selections, it would not be a material dispute because Complainant has not shown any link between the reliance on LEAN in her non-selection and her protected bases. Complainant also argues that there are credibility issues to be decided regarding her assertion that the SO promised her a promotion to a GS-11 position, which the SO denies. See ROI at 376, 399-400. However, the disagreement over whether or not the SO promised Complainant the promotion is not material, as it does not provide evidence of a discriminatory motive on the part of the SO. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We find that the AJ properly determined that there are no genuine issues of material fact in dispute. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This established order of analysis, in which the first step normally consists of determining the existence of a prima facie case, need not be followed where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue. Since the instant complaint involves an allegation of disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for not selecting complainant, it is Complainant’s burden to demonstrate by a preponderance of the evidence that the agency’s non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary’s Honor Ctr. v. Hicks, 509 U.S 502 (1993). In a non-selection case, pretext may be demonstrated by a showing that a complainant's qualifications are “observably superior” to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case, the Agency stated that Complainant was not selected for the position because she did not score as highly on the scoring matrix used by the SO in evaluating the candidates. 2020005452 5 Complainant received a total score of 82 on the scoring matrix while the Selectee received a score of 93. See ROI at 153, 164. The SO further stated that there were no interviews and she only reviewed the applicants’ resumes in scoring them according to the matrix, which has always included knowledge of LEAN processes. See ROI at 388-89. The SO explained that, in order to be consistent, she scored applicants based only on what was in their resumes. See ROI at 395. We find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for her non-selection is a pretext for unlawful discrimination. As an initial matter, we note that a comparison of Complainant’s and the Selectee’s resumes does not support Complainant’s contention that she is clearly better qualified than the Selectee due to her credentials and her experience. The Selectee’s resume includes specific mentions of many of the individual systems that are included in the scoring matrix, while Complainant’s does not. To the extent Complainant argues that she has more knowledge of LEAN and other systems than the Selectee, the information is not reflected in Complainant’s resume, and the SO testified that she only looked at the resumes in scoring the candidates. While Complainant does have more years of experience at the Agency than the Selectee, that is not sufficient to establish a clear superiority of credentials. The Commission has long held that a person’s length of experience does not necessarily mean she is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). Contrary to Complainant’s contention, the mere fact that LEAN was not included in the job announcement does not establish pretext. The evidence in the record supports the SO’s assertion that knowledge of LEAN processes is an important component to the Agency as a whole and to the position specifically. See, e.g., Hearing Record, Agency’s Supplement to the Record #1. LEAN Six Sigma activities are also listed among the Major Performance Objectives in Complainant’s performance evaluation. See Hearing Record, Agency’s Supplement to the Record #2. To the extent Complainant argues that the reliance on LEAN was unfair because it was not mentioned in the vacancy announcement and she therefore did not know she should emphasize it in her resume, we note that this perceived unfairness applied to all applicants for the position. Complainant has not provided any support for her belief that reliance on LEAN was a pretext for unlawful discrimination, nor has she established any nexus between the SO’s focus on LEAN and any of her protected classes. It is well established that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Burdine, at 259; see also Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Where, as here, the position at issue requires specialized knowledge (e.g. Agency-specific systems and processes, including LEAN Six Sigma), the Agency has even greater discretion in its selection criteria. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Mere disagreement with an Agency’s actions is not sufficient to establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). In this case, there is no evidence in the record to indicate that the decision not to select Complainant for the position of Maintenance Management Specialist was based on unlawful discrimination. 2020005452 6 We conclude that the preponderance of the evidence supports the AJ’s determination that Complainant failed to establish that the Agency’s reason for its action was a pretext for 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 action, finding that Complainant did not establish that she was discriminated against as alleged. 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). 2020005452 7 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. 2020005452 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 2, 2022 Date