[Redacted], Zenia M., 1 Complainant,v.Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Oct 4, 2022

Appeal No. 2022004119 (E.E.O.C. Oct. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenia M.,1 Complainant, v. Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 2022004119 Hearing Nos. 570-2019-01682X 570-2020-00740X Agency Nos. 19-004-F 20-001-F DECISION The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 30, 2022 final order concerning the two captioned formal complaints which claimed unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Lead Auditor, GS-0511-14, at the Agency’s Corporate Controls and Review Department ("CCRD") in Washington, D.C. 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. 2022004119 2 Complaint 1 - Agency No. 19-004-F Complainant claimed that Agency discriminated against her based on her race (African American), sex (female), age (YOB: 1969) and in reprisal for prior protected EEO activity (EEO complaints filed in 2015) when: 1. On January 17, 2019, she learned she was not given any consideration by the acting Department Director to serve as an interim Division Manager at the GS-15 level, denying her “time-in-grade” which put her at a disadvantage for a possible promotion. Complaint 2 - Agency No. 20-001-F Complainant claimed that she was subjected to discrimination based on her race (Black), sex (female), age (YOB:1969), and reprisal (individual and class complaints in 2015 and Complaint 1 referenced above) when: 2. On or about July 24, 2019, Complainant received notice that she was not selected for promotion to a Senior Auditor, GS-0511-15, position under Vacancy Announcement No. CCRD-2019-0001. Selecting official was the Department Director of CCRD. 3. On or about August 28, 2019, Complainant received notice that she was not selected for promotion to a Supervisory Auditor, GS-0511-15 position under Vacancy Announcement No. CCRD-2019-0002. Selecting official was the Department Director of CCRD. After an EEO investigation by the Agency, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated the two captioned complaints for processing. Thereafter, the Agency filed a Motion for Summary Judgment on June 13, 2022. Complainant responded to the Motion. On June 13, 2022, the AJ issued a summary judgment decision concluding no discrimination or unlawful retaliation was established. In its June 30, 2022 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). 2022004119 3 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. Claim 1 On June 26, 2006, Complainant began working for PBGC as a GS-13 Auditor in CCRD. Complainant’s first line supervisor was the Deputy Director of CCRD. The Deputy Director promoted Complainant to her current position as GS-14 Lead Auditor. In September 2013, the Supervisory Auditor/Division Manager of the Audit Coordination and Compliance Evaluations Division (ACCED) became Complainant’s direct supervisor. From 2001 to September 2013, the Supervisory Auditor/Division Manager had been Complainant’s co-worker. The Director of CCRD retired on December 31, 2018. Following the former Director’s retirement, the Supervisory Auditor/Division Manager served as the Acting Director of CCRD from January 1, 2019 to April 27, 2019. On April 28, 2019, the Acting Director of CCRD became the Director of CCRD. The Acting Director of CCRD decided that it would be beneficial to appoint an interim Division Manager of ACCED while he was serving as Acting Director. The Acting Director did not know how long it would be until the permanent Director was selected, and he did not know how long the Division Manager position would be vacant. The record reflects that temporary promotions could not exceed 120 days unless the position was formally posted. The Acting Director selected a named GS-14 Lead Auditor (White male, about five years older than Complainant; prior EEO activity unknown) (“Lead Auditor”) as interim ACCED Division Manager and announced his selection at a staff meeting on January 17, 2019. On February 19, 2019, Complainant informed the Acting Director that she was also interested in being appointed to the interim position. The Lead Auditor was interim Division Manager from February 2, 2019 to May 25, 2019 (a total of 110 days). When the Lead Auditor’s time was up, the position was still available and the Acting Director appointed Complainant as interim Division Manager. 2022004119 4 She served as interim Division Manager from May 26, 2019 to September 23, 2019 (a total of 120 days). The AJ determined, and the record evidence fully supports, that Complainant was “ultimately given the same opportunity to serve in the interim Division Manager role as [a named employee] and received the same consequent benefits and privileges.” Therefore, Complainant has failed to establish that she was subjected to discriminatory disparate treatment with regard to this claim. Claims 2 and 3 Regarding claim 2, Complainant alleged that on or about July 24, 2019, she received notice that she was not selected for promotion to a Senior Auditor, GS-0511-15 position under Vacancy Announcement No. CCRD-2019-0001, in CCRD by the selecting official, Department Director of CCRD. The selecting official stated that on or about June 25, 2019, the Human Resources (HR) Specialist provided him a list of six candidates for the Senior Auditor position, including Complainant. The selecting official interviewed all of the six candidates. Following the interviews, the selecting official discussed the interviews with the Division Manager and obtained his advice. The selecting official reviewed the resumes again and chose the selectee (African American male, about seven years younger than Complainant; had filed previous EEO complaints in 2016 and 2017) for the Senior Auditor position. The selecting official stated that he determined that the selectee was more qualified than the other five candidates. Specifically, the selecting official stated that the selectee had more specialized experience relevant to the anticipated responsibilities of the position. As for Complainant, the selecting official stated that she was qualified for the position, but he concluded the selectee’s prior experience made him better qualified. With regard to the Supervisory Auditor, GS-15 position, the selecting official and the newly hired Senior Auditor were part of the interview panel. The selecting official stated that the HR Specialist provided him with two lists of candidates, competitive and non-competitive, along with their resumes. Following a review of resumes and interviews, the selecting official discussed the interviews with the newly hired Senior Auditor. The selecting official chose the selectee (White female, about three years younger than Complainant; prior EEO activity unknown) for the Supervisor Auditor position. He explained again that while Complainant was qualified for the position, they determined the selectee was the best qualified. He stated the selectee submitted a detailed resume which showed the selectee had extensive supervisory experience in other federal agency employment and was a senior manager at the SES level at the time of her interview for the position. For both selections, we conclude that Complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons were a pretext for discrimination or unlawful retaliation. It is undisputed by the Agency that Complainant was qualified for the positions in question. However, the selecting official determined the selectees were better qualified. 2022004119 5 Complainant has not shown that the alleged disparities in qualifications between herself and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). On appeal, Complainant also argues that older African American females are under-represented in the higher grades in CCRD. However, she did not provide sufficient evidence of this claim and/or evidence to tie it to these particular selection decisions. In sum, the evidence supports the AJ’s determination that there was inadequate evidence that discriminatory or retaliatory animus played a role in the disputed selection decisions. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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. 2022004119 6 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 court has the sole discretion to grant or deny these types of requests. 2022004119 7 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 4, 2022 Date