[Redacted], Venetta S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Oct 7, 2021

Appeal No. 2021003158 (E.E.O.C. Oct. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Venetta S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021003158 Hearing No. 480-2020-00508X Agency No. HHS-OS-0052-2019 DECISION On May 6, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 7, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Attorney Advisor, GS-905-14, assigned at the Agency’s Office of Medicare Hearings and Appeals (OMHA) in Irvine Field Office, in Irvine, California. On October 23, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of national origin (Iranian/Middle Eastern) and in reprisal for prior EEO activity when, on July 19, 2019, she learned that she was not selected for a Supervisory Administrative Law Judge position. 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. 2021003158 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On January 21, 2021, the Agency issued a Motion for Summary Judgement. Complainant filed a response. On January 22, 2021, Complainant issued a Motion for Summary Judgment. On February 5, 2021, the Agency filed its response. On March 25, 2021, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its April 7, 2021 final order, the Agency adopted the AJ’s decision. The instant appeal followed. 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 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 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 administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party 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). 2021003158 3 With regard to her retaliation claim, Complainant alleged that in April 2019, an EEOC administrative judge issued a decision concluded Complainant was discriminated against on the basis of her national origin when she was not promoted to a GS-13 Senior Attorney position in September 2012. Complainant alleged that management behaved negatively towards her ever since. The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. In 2007, Complainant was hired as an Attorney Advisor at the Office of Medicare Hearings and Appeals (OMHA) at the Irvine Field Office. In 2016, Complainant was promoted to Senior Attorney Advisor. On October 29, 2017, Complainant was promoted to a Supervisory Attorney Adviser at OMHA. “OMHA national” administers the third level of hearings and appeals for the Medicare program. OMHA has eleven Field Offices located in Phoenix, Arizona; Irvine, California; Denver, Colorado; Miami, Florida; Atlanta, Georgia; New Orleans, Louisiana; Kansas City, Missouri; Albuquerque, New Mexico; Cleveland, Ohio; Arlington, Virginia; and Seattle, Washington. Each Field Office contains approximately 15 Supervisory Administrative Law Judges (SALJs). SALJs conduct impartial hearings and make decisions on Medicare appeals in accordance with the Administrative Procedures Act (APA) and Title 42 of the Code of Federal Regulations. Each SALJ is responsible for supervising his or her direct support staff usually comprised of a lawyer, a paralegal, and a hearing clerk. These SALJs are directly supervised by the Associate Chief Administrative Law Judge of each Field Office. As of 2019, the Irvine Field Office contained an attorney pool separate from the SALJs. Two Supervisory Attorney Advisors, including Complainant, were responsible for managing the attorney pool. The pool of Field Office Attorneys and legal support staff support various SALJs on a case-by- case basis. As of August 13, 2019, Complainant directly supervised two Field Office Attorneys. The Supervisory Attorney Advisors participate in managing the case load distribution for each Field Office and provided advice to Field Office Attorneys. On January 10, 2019, the Agency had posted vacancy announcements for Supervisory Administrative Law Judge positions at all eleven of its Field Offices under Job Posting Number HHS-OMHA-ALJ-19-10391010. The announcement closed on January 16, 2019. Applicants were required to submit a resume, an expression of interest, a professional legal writing sample, proof that they were authorized to practice law, a transcript proving their education, and a list of six references. According to the posting, applicants would be selected for interviews and to participate in a proctored writing assessment. The Agency policy for hiring SALJs is called the “Department of Health and Human Services Administrative Law Judge Appointment Process under the Excepted Service” and was published on November 29, 2018. 2021003158 4 The policy contains identical desirable qualities and requirements to the job posting. The policy also indicates that the initial candidates will be screened to determine which candidates qualify for an interview and written assessment. The record shows there were approximately 500 applicants, including Complainant, for the advertised positions. The record reflects that only 167 were selected for an interview and written examination. On March 21, 2019, Complainant was notified that she had been selected for an interview and written examination. Complainant was asked to identify her preferred Field Offices in ranked order, and whether she would like to be removed for consideration from any Field Office. On March 27, 2019, Complainant notified the Agency that she did not want to be considered for any position other than the Irvine Field Office and asked to be removed from consideration for all other Field Offices. Interviews consisted of a panel of two interviewers and an observer, all of whom were OMHA SALJs or Associate Chief Judges. Interviews were conducted via video conference. The Associate Chief Judge at each Field Office would provide two judges at a time to perform interviews and a third judge to observe the process. Over 30 judges conducted interviews for the Irvine Field Office and interviews were performed via video conference from around the country. Panels asked each interviewed applicant an identical list of 14 questions. The two interviewers then scored the applicant’s answers along with their overall performance. Points were awarded based on how an interviewee’s answers displayed competency in twelve topics. Overall performance was graded based on “communication ability demonstrated by the ability to answer questions.” A total of 52 points were available and interviewees were to be judged solely on their performance during the interview. Applicants who received a score lower than 27 out of 52 in their interview were no longer considered for an SALJ position. On April 10, 2019, two SALJs from the New Orleans Field Office interviewed Complainant and scored her answers. Neither had met Complainant in person or via video conference before the interview and both stated that they were unaware of her national origin and prior protected activity at the time of their evaluation. During the interview, the panelists claim Complainant failed to respond to four questions. The interviewers found Complainant provided a below average interview performance, and she received a grade of 27 out of 52, the lowest possible score that was still considered “passing.” Applicants were also given a written examination which OMHA judges graded anonymously. Applicants who received a score lower than 68 out of 100 were considered “not qualified” for the SALJ position. 2021003158 5 On the same day as her interview, Hearing Director proctored Complainant’s written examination from the Irvine Field Office. The Hearing Director provided this service for all applicants who chose to conduct their interview and written examination from the Irvine Field Office. The Hearing Director did not make any substantive decisions in the application process. Although Complainant accuses the Hearing Director of discrimination, he acted as a reference and recommended Complainant for the SALJ position. A SALJ from the Miami Field Office anonymously graded Complainant’s examination along with approximately 149 other applicants. Complainant received a score of 81 out of 100. She lost points for her punctuation, spelling, analysis, conclusion, and organization. Complainant’s combined interview and written score were lower than 48 out of the 74 applicants who applied to the Irvine Field Office and received an interview and written examination. Complainant’s interview score was lower than 57 of those applicants. Her written exam score was lower than 35 of those applicants. The selectee for the Irvine Field Office received a written score of 90 out of 100 and an interview score of 45 out of 52. Further, the selectee’s combined score was higher than all but seven of the applications to the Irvine Field Office who received an interview and written examination. His interview score was higher than all but 13 applicants to that office. His written examination score was higher than all but 16 applicants to the Irvine position. The interview scores, written examination scores, and application packets were forwarded to the Deputy Chief ALJ. After reviewing these materials and weighing the seven desirable qualifications, he placed the 167 applicants who received an interview and written exam into four tiers: “not qualified;” “minimally qualified;” “qualified;” and “highly qualified.” The Deputy Chief works at the OMHA headquarters in Arlington, Virginia, a separate office from Complainant. At the time of her non-selection for the SALJ position, he did not know Complainant and she is not within his supervisory authority. On May 14, 2019, the Deputy Chief placed Complainant into the “qualified” tier. He placed her into this category based on her scores, along with her 19 years of experience as an attorney, including her two years as an OMHA Supervisory Attorney and work as an Attorney Adjudicator. He also found her litigation background included five years as a private practice attorney. The Deputy Chief believed her work history reflected the ability to produce a high volume of quality decisions that were legally defensible, demonstrated healthcare law experience, and showed good oral and written communication skills. The Deputy Chief ranked the selectee as “highly qualified” on the same day. In his folder review, the Deputy Chief wrote that he believed the selectee’s written assessment reflected a strong ability to produce legally defensible decisions. He also noted that the interview panel found that the selectee strongly met all desirable qualifications for an SALJ. The Deputy Chief acknowledged the selectee’s 13 years of experience as an attorney, including 10 years of litigation experience and his experience as Counsel to the Solicitor of Labor. 2021003158 6 He found the selectee to be “extremely well-rounded and desirable” and his litigation experience “extensive” including civil, administrative, and appellate matters at both the State and Federal Level. On May 30, 2019, the Deputy Chief ALJ recommended the selectee for appointment to one vacant Irvine Field Office SALJ position, In her memorandum to the Secretary recommending the selectee, the Deputy Chief ALJ agreed with the Deputy Chief’s reasoning, copying his folder review in its entirety and placing it into the recommendation memorandum. The Deputy Chief ALJ stated that the Chief ALJ was the recommending official and the former Secretary of the Department of Health and Human Services was the selecting official. He stated that the selectee was highly qualified. Specifically, he noted that the selectee’s interview score was 45 out of 52 and his writing assessment was 90 out of 100 points. The Deputy Chief explained that he determined that the selectee had “greater overall ‘experience and credentials’ than Complainant within the 7 desirable qualifications set forth in the ‘Department of Health and Human Services Administrative Law Appointment Process Under the Excepted Service’ issued on November 29, 2018 and the Vacancy Announcement on USA Jobs.” The Chief Administrative Law Judge, also Complainant’s third-line supervisor (S3), explained that the Deputy Chief ALJ, and two Associate Chief Judges reviewed the applicant packets and determined which of the applicants possessed the greatest number of desirable qualifications and referred them for interviewing and proctored writing assessment.” She stated that Complainant was referred for interview and proctored writing assignment. Further, S3 acknowledged that she did not recommend Complainant for the Irvine Field Office because there was a better qualified candidate. Specifically, she stated that Complainant received 27 out of a possible 52 on her interview and 81 out of a possible 100 on her written assessment and was assessed as “Qualified” based on her complete file. Meanwhile, S3 noted that the selectee received a 45 during his interview and 90 on the written assessment and was determined by the Deputy Chief as being “Highly Qualified” for appointment in the Irvine Field Office. Subsequently, S3 recommended the best qualified selectee for the subject position. In his decision, the AJ noted that the selectee was “rated as “highly qualified” with an interview score of 45/52 and a written examination score of 90/100” whereas Complainant’s combined interview and written exam scores were 27/52 and 81/100 and was rated as “qualified.” He further noted that Complainant did not present any evidence that her qualifications were plainly superior to those of the successful candidate or suggesting discriminatory or retaliatory animus. On appeal, we conclude that beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. Her national origin or prior protected activity did not appear to have any impact on the selection decisions made. 2021003158 7 The large number of applicants and significant number of Agency officials from multiple locations involved in this selection process, many who did not know Complainant or the selectee, make it highly unlikely, without more, that discriminatory or retaliatory animus played a role in this matter. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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). 2021003158 8 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. 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 7, 2021 Date