[Redacted], Yvette H.,1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 0120181733 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yvette H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 0120181733 Hearing No. 480-2016-00610X Agency No. USA-2015-02202 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 April 24, 2018, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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discriminated against her based on her sex or disability, or in reprisal for prior protected EEO activity, when it rescinded Complainant’s conditional job offer of a Legal Assistant position. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name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. 0120181733 2 BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s United States Attorney's Office for the Central District of California in Los Angeles, California. On December 9, 2014, the Agency opened a vacancy for a Legal Assistant (GS-06), under vacancy number 15-1273548-MS. Report of Investigation (ROI) at 268-74. Complainant stated that she applied for the position and had two telephonic interviews. ROI at 86. On April 30, 2015, a Human Resources Specialist (HRS) (no disability, no prior EEO activity) informed Complainant of a conditional offer for the Legal Assistant position, which included the satisfactory completion of a background investigation leading to the issuance of a security clearance. ROI at 145. As part of her background investigation, Complainant disclosed that she was informed that she would be terminated from a prior federal position for not meeting minimum performance standards, and that she transferred to a different position. ROI at 166. On July 15, 2015, HRS informed a Supervisory Legal Assistant (SLA) (no disability, no prior EEO activity) that Complainant revealed that she left a job by mutual agreement following allegations of unsatisfactory performance. SLA responded that she would not support Complainant’s employment as a Legal Assistant due to “prior employment problem left the job unfavorably.” ROI at 280. On August 10, 2015, a Human Resources Officer (HRO) (no disability, no prior EEO activity) notified Complainant that the Agency was withdrawing the tentative employment offer because the information that Complainant provided during the processing of her background investigation could not support a waiver of a full-field national security background investigation. ROI at 256. On October 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (transgender/sexual orientation/gender identity)2 and disability (mental), and in reprisal for prior protected EEO activity, when on August 10, 2015, the Agency rescinded Complainant’s offer of employment for a Legal Assistant position. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s December 1, 2017, motion for a decision without a hearing and issued a decision without a hearing on March 20, 2018. 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). 0120181733 3 The AJ stated that, after a thorough review of all submissions and the record evidence and having made all reasonable inferences in favor of Complainant, he determined that Complainant had not presented evidence sufficient to prove her claims. The AJ noted that Complainant admitted at her deposition that she had no evidence of discrimination and/or reprisal by the Agency based on her protected categories. The AJ also found that the Agency had a legitimate, nondiscriminatory reason to revoke Complainant’s employment offer; namely, in her previous job, Complainant was notified that she would be terminated for not meeting minimum work standards. Accordingly, the AJ granted the Agency’s Motion for a Decision Without a Hearing. 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.3 CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant states that the Agency withdrew her offer of employment because she was fired from federal employment. However, Complainant asserts that she was not fired, but transferred to a different position, which would not have been possible if she had been fired. Complainant argues that she has proven that she was not fired, and that the Agency’s reason for rescinding her employment offer was not based on fact, and therefore, not justified. Agency’s Contentions The Agency asserts that the AJ’s decision and its final order are fully supported by the record and the law. The Agency notes that, although Complainant authorized the Agency to contact her medical provider to ask if Complainant had a condition or treatment that could impair her judgement or credibility, the Agency never obtained Complainant’s medical records. In addition, the Agency states that Complainant testified that she did not believe that the Agency discriminated against her based on her transgender status, sexual orientation, gender identity, or disability, or in reprisal for prior protected EEO activity. 3 On June 29, 2018, the Agency filed a Motion for Enlargement of Time to file its opposition brief, simultaneously with its opposition brief. The Agency noted that it received Complainant’s notice of appeal on May 24, 2018, and it believed that its deadline to file an opposition brief was within 60 days of this date. The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29 C.F.R. §1614.403(f). Complainant filed her appeal brief on May 18, 2018, but it is not clear when the Agency received a copy of her appeal brief. As such, we will consider the Agency’s opposition brief to be timely. 0120181733 4 The Agency argues that Complainant admitted that there was no discrimination, and that there is no need to engage in a prima facie burden shifting analysis. The Agency requests that the Commission affirm its final order implementing the AJ’s March 20, 2018, decision. 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”). ANALYSIS AND FINDINGS Decision Without a Hearing We 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. 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. 0120181733 5 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 did not identify any dispute of material facts. To the extent that Complainant argues that there is a dispute regarding the Agency’s reason for rescinding her job offer, we find that there is no dispute, as discussed further below. A review of the record does not reveal any genuine disputes of material facts; and accordingly, 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 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, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and disability, and in reprisal for prior protected EEO activity, we find that the Agency proffered a legitimate, nondiscriminatory reason for its action. SLA stated that she recommended that the Agency rescind Complainant’s offer of employment due to her unfavorable prior employment. ROI at 116. We find that Complainant has not shown that the proffered reason was 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 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 Agency’s reason for rescinding her employment offer because she was fired was not based on fact, and therefore, not justified. However, we find that the Agency did not withdraw Complainant’s offer of employment because she was “fired.” 0120181733 6 The record shows that Complainant disclosed that she did not meet the minimum performance standards of a prior position, and that she left the position by mutual agreement following allegations of unsatisfactory performance. ROI at 166, 194. SLA then determined that she would not support Complainant’s employment as a Legal Assistant due to “prior employment problem left the job unfavorably.” ROI at 280. In addition, HRS and HRO stated that Complainant’s job offer was rescinded because she left a job under unfavorable circumstances. ROI at 123, 132. We find that there is no evidence that SLA, HRS, or HRO believed that Complainant had been fired. Rather, they acknowledged that Complainant left her position voluntarily, due to performance issues, which was the basis for SLA’s decision to rescind Complainant’s job offer. As such, we find that Complainant did not show that SLA’s reason was pretext for discrimination. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence that any Agency official involved in Complainant’s application process was aware of her status as a transgender individual, sexual orientation, gender identity, disability, or prior protected EEO activity at the time that the Agency rescinded Complainant’s offer of employment. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her sex or disability, or in reprisal for prior protected EEO activity, when it rescinded her conditional offer of a Legal Assistant position. 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 sex or disability, or in reprisal for prior EEO activity, when it rescinded Complainant’s conditional job offer of a Legal Assistant position. 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. 0120181733 7 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). 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. 0120181733 8 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 June 9, 2021 Date