Rosario C.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jan 16, 2020

2019002478 (E.E.O.C. Jan. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosario C.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2019002478 Agency No. HHS-FDACDRH-030-18 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the January 2, 2019 Final Agency Decision (“FAD”) concerning his equal employment opportunity (“EEO”) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was the retired former Director, Division for Biomedical Physics ("DBP"), Office of Science and Engineering Labs ("OSEL") within the Center of Devices and Radiologic Health ("CDRH"), located in Silver Spring, Maryland. On February 13, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (65) when, on December 5, 2017, he became aware that he was not selected for his former position of Director, DBP, OSEL, at the CDRH. 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. 2019002478 2 At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record provides the following relevant facts: Complainant is the former Director, Division of Biomedical Physics (“DBP”), one of five divisions comprising the Office of Science and Engineering (“OSEL”). OSEL fell within the Agency’s Center for Devices and Radiological Health (“CDRH”). Complainant’s first level supervisor was the Deputy Director, OSEL, and this second level supervisor, the Responding Management Official to this complaint (“RMO-1,” age 52) was the OSEL Director. In 2010, Complainant competitively applied for the position of DBO Director, and was appointed to the position as a Commissioned Officer subject to a mandatory Public Health Service Retirement at age 65. Throughout his tenure, he consistently received “excellent” ratings on his performance evaluations, including in the category of leadership. In January 2017, Complainant informed RMO-1 that he would turn 65 that year and be subject to mandatory retirement. Complainant made clear that he wanted to retain his position, reasoning that that other employees subject to the mandatory retirement age, including his predecessor, were provided extended appointments through Title 42. Complainant states that at RMO-1’s suggestion, he initiated the paperwork for a Title 42 conversion. During another conversation on the matter, Complainant told RMO-1 that he wanted to return to DBP “in some form” if not Director. RMO-1 responded "What form do you want to come back in? A goat?" Complainant felt RMO-1 was commenting on his age. RMO-1 recalled speaking with Complainant about his mandatory retirement on at least two occasions, and in each instance, he “didn’t make any promises” about Complainant’s employment. He did not recall “suggesting” that Complainant complete Title 42 paperwork, but acknowledged that he made the “goat” comment, when attempting to ascertain Complainant’s “overall motivations for wanting to continue his career with CDRH.” In March 2017, Complainant inquired with his colleague (“W2”) at the Division of Administrative and Laboratory Support (“DALS”). W2 notified Complainant that under Title 42, he would still be subject to the competitive hiring process, as it could only be implemented after exhausting all recruitment initiatives. She further stated that they would be submitting the position description to the Office of Human Resources (“OHR”) for classification and posting. According to Complainant, RMO-1 strongly encouraged him to apply competitively. Having previously been selected, and based on his performance record and conversations with RMO-1, Complainant believed he would be able to return to his position as DBP Director. In July 2017, Complainant retired, and in August 2017, two separate vacancy announcements were posted for the position of DBP Director, in order to attract applicants from both scientific and engineering backgrounds. 2019002478 3 OHR screened 59 applications and forwarded a certified list of 17 candidates deemed to have met the criteria of the position to RMO-1, the selecting official. Complainant was among several “top qualified” candidates, as he met the criteria for both the engineering and scientific position descriptions. The Agency identified six witnesses who assisted RMO-1 with the selection process by either narrowing down the list of candidates to determine who to interview, or by interviewing the candidates:2 - Witness one (“W1,” age 66) was the Acting Director, DBP, and had been Complainant’s direct report before Complainant retired. During the relevant time frame, W1’s first level supervisor was W5, and his second level supervisor was RMO-1. - Witness two (“W2,” age 49) was the Supervisory Program Management Officer, for the Division of Administrative and Laboratory Support (“DALS”), which, like DBO, was a division of OSEL. She had been colleagues with Complainant, and spoke with him informally when he asked about staying with the Agency under Title 42. RMO-1 was W2’s first level supervisor. RMO-1 relied heavily on procedural guidance from W2, as he had been in his position for less than a year, and the DBO Director was the first position he was responsible for filling. - Witness three (“W3,” age 63), was the Director, Division of Reproductive, Gastro-Renal, Urological Devices, CDRH. He first met Complainant in the 1980s, when they both worked in CDRH, they held similar positions in different offices, with minimal exceptions. W3 testified that RMO-1 asked him to help with interviewing five candidates for the OSEL/DBP vacancy because he had regulatory and research knowledge. “Along with [W6], I was a ‘pseudo outsider’ in that we did not work in OSEL, but we had regular interactions with the OSEL researchers; we had an understanding of how the DBP functioned, and we were familiar with how to build bridges from the research side to the regulatory side.” W3 specified, “[a]t no point during my participation with the selection committee did we discuss [Complainant].” - Witness four (“W4,” age 59) was the Director, Division of Imaging Diagnostics and Software Reliability, which, like DBO and DALS, was a division of OSEL. W4 reported to W5 as her first level supervisor and RMO-1 as her second level supervisor. However, from September 2015 through November 2016, W4 was Complainant’s second level supervisor as the Acting Director, OSEL. - Witness Five (“W5,” age 68) was the Deputy Director, OSEL, and was Complainant’s first level supervisor during and prior to Complainant’s term as 2 For consistency this Decision retained the Agency’s numerical designations for the witnesses. 2019002478 4 DBP Director. W5 held the position of DBP Director prior to Complainant. W5 reported to RMO-1 as his first level supervisor. - Witness Six (“W6,” age 35) was the Acting Deputy Director for Radiological Health, Office of ln Vitro Diagnostics and Radiological Health (“OIR”), which, like OSEL, was part of the CDRH. W6 also served for several years as the Director of the Division of Radiological Health in OIR, which has responsibility for premarket review and post-market oversight of many of the imaging technologies being researched in DBP. W6 describes Complainant as a colleague at the CDRH level, who he did not interact with regularly. On September 27, 2017, RMO-1 sent an email to W1, W2, W4, W5, and W6, who he felt were “extremely objective” with “lots of common sense,” and who were all stakeholders with respect to DBP. RMO-1 asked them to be part of a Selection Committee for the DBP Director vacancy, and to help narrow the amount of candidates to invite for interviews by sending him lists of the candidates based on three categories: “probably should interview,” “could interview” and “probably should not interview.” RMO-1 provided the Selection Committee with the application packages of the qualified candidates, along with the DBO Director position criteria and interview questions. He further specified, “[i]f it doesn’t come out clearly in the paperwork, I really want a world class leader and manager. I don’t care about their scientific merit too much at all, we have plenty of people to do that.” The witnesses and RMO-1 all testify that the decision on who to interview was “consensus” based. We note that aside from the Selectee, who RMO-1 initially did not include on his rating sheet, all four of the other candidates “selected” for interviews were already in RMO-1’s “could” or “should” interview lists, including one candidate who did not appear in any of the other Committee members’ lists. While RMO-1 may have considered the Selection Committees’ categorization of the candidates, his list appears to have been used as a tie breaker among other higher rated candidates who ultimately did not make the cut. Complainant received two “should interview” and three “should not interview” ratings. RMO-1 categorized Complainant under “should not interview.” While traditionally, a former Director would be provided a “courtesy interview,” RMO-1, after consulting with W2, opted not to invite Complainant for an interview, as it was not required under Agency policy. The Selectee was the only candidate to receive a total of four “should” ratings from the committee. The Selectee was approximately 40 years old, and the other candidates selected for an interview ranged in age, but all were at least 5 years younger than Complainant. Complainant alleges age discrimination, as he was surprised to learn of his nonselection, and that he was not invited for an interview, particularly given his track record at DBP. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 2019002478 5 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, (“EEO MD-110”) at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). 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). For Complainant to prevail, he or 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Legitimate Nondiscriminatory Reason Here, the Agency’s legitimate nondiscriminatory reason for Complainant’s nonselection at the interview stage was the wealth of highly qualified candidates, and RMO-1’s emphasis on candidates with a collaborative leadership style, and outside experience. Significantly, neither the witnesses, nor RMO-1 dispute that Complainant is highly qualified for the position. 2019002478 6 However, RMO-1 sought a candidate with “broader” experience, reasoning, that government management was “archaic” and OLEC would benefit from a candidate with “modem management systems from industry.” He also sought a candidate with stronger, more collaborative leadership skills than Complainant. RMO-1 characterized Complainant’s, experience as “focused predominantly on research and management of research.” RMO-1 testified that compared with the candidates selected for interviews, Complainant “did not have as broad an experience… in terms of liaising with industry, government, and/ or academia and demonstrating the ability to understand the motivations and / or negotiate the agendas of a wide variety of stakeholders.” RMO-1, while acknowledging that “no particular incident resulted from [Complainant’s] supervisory approach” testified his opinion that Complainant “was enormously popular among his direct reports, primarily because he exercised insufficient management control or discipline in his role.” W4, along with W6, and W5--the only two selection committee members to recommend Complainant--all offered specific testimony regarding Complainant’s management style that was consistent with the Agency’s legitimate nondiscriminatory reasons. W4 testified that her “substantial experience as [Complainant’s] peer and also, as his supervisor, [allowed her] to recognize that there were aspects to his approach of working with peers and managing his direct reports that could be more capably handled by someone more qualified.” Specifically, W4 cited “significant disagreements” that were “not getting resolved” between the DBP Deputy Directors (Complainant’s direct reports). According to W4, Complainant’s approach to his subordinates’ “distinctly different mindsets” and how to allocate funding and evaluate proposal submissions, among other things, allowed an ongoing conflict that was “not optimally servicing the CDRH.” W4 testified, that she did not recommend Complainant for an interview because she sought candidates who she believed would be more likely to get the “division moving in the same direction” and see the big picture, as far as their role within CDRH. W4 also noted the high caliber of the candidates, “we had before us the opportunity to select a person with new ideas, connections to organizations that could benefit the Division, and a depth of experience that would be advantageous to the Division.” W5 testified that he recommended Complainant for an interview, because, among other things, as DBP Director, Complainant was “instrumental” in DBP’s success, and that under Complainant’s leadership, DBP “performed exceptionally well by any measure.” According to W5, Complainant was “very good” at working with individuals at higher levels of government and in the private sector, particularly with explaining how scientific research fit within government regulations. However, W5 also testified that “on the management side, [Complainant] could have been more adept at navigating the politics of the chain of command.” Specifically, W5 explained, Complainant “was also very good at managing, mentoring, and developing his staff [but]…because he always supported his staff, he often had to raise issues with the CDRH Personnel office, and my understanding is that higher-level management thought that DBP staff needed to manage those issues on their own.” 2019002478 7 W6 testified that he recommended Complainant be interviewed “based on his experience with DBP and his perspective on the strengths and weaknesses of the division that a new Director would need to address.” However, W6 further testified that he was “not surprised” when Complainant was not selected for an interview. According to W6, RMO-1 “wanted a change in the culture and operations of the division,” particularly with respect to collaboration. W6 noted that he did “not recall any specific interactions with [Complainant]” which “contrasts with [the other OSEL Division Directors and senior management] with whom there is regular contact on a variety of scientific and regulatory issues.” Further, W6 stated that he felt “there were concerns that some staff in DBP needed to be redirected to place a greater emphasis on supporting the review divisions, and that hiring a new director would be part of this change.” The Agency’s legitimate nondiscriminatory reasons are also supported by the candidates the Selection Committee decided to interview. All exhibited more external experience than Complainant, liaising with government and non-government entities, and strong leadership skills involving collaboration at multiple levels. The selectee, while significantly younger than Complainant, held a high profile leadership position with a major pharmaceutical corporation, and had a background exemplifying the experience RMO-1 sought for the new DBO Director. Pretext In a nonselection case, pretext may be demonstrated by a showing that complainant's qualifications are demonstrably or 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); Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6, 1998). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Where, as here, the nonselection concerns a management level or specialized position, the Agency, as employer, has even greater discretion in its selection. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). We have long held that it is not our function to substitute our judgment for that of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec.6, 1996) citing Bauer v. Bailar, 647 F. 2d 1037, 1048 (10th Cir. 1981)). We note that a person’s length of experience does not necessarily mean he or she is better qualified. See Macready v. Dep’t of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). Complainant argues that the Selection Committee’s decision on which candidates to interview was invalid because they did not apply an objective, numeric scoring metric, and exhibited a bias toward external candidates. He also questions the Selection Committee’s motivation and qualifications, stating that W4 was director of a “competing division,” and W2 lacked an educational background in science and engineering. 2019002478 8 He contended that it was “unusual” for RMO-1, as selecting official, to take such an active role in the interview selection process, and that RMO-1 wielded too much influence over several members of the Selection Committee, who reported to him as their first or second level supervisor. The record does not reflect a violation of Agency policy in RMO-1’s role and how the candidates to interview were selected. Even if Complainant provided evidence to support invalidating the Selection Committee, a finding that one explanation by an agency for a personnel action is invalid does not mandate a finding that the act was discriminatory. See Fouts v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A62038 (May 31, 2006). As selecting official for a specialized position, RMO-1 acted within his discretion to place more weight on the candidates’ leadership style and non- governmental experience. Ultimately, Complainant failed to establish pretext because he has not shown that his qualifications, particularly the breadth of his professional experience, collaborative skills and leadership style, while considerable, are “observably superior” to those of the other candidates interviewed, particularly the selectee. CONCLUSION After a thorough review the record and contentions on appeal, including those not specifically addressed herein, the Agency’s Final Decision, finding Complainant failed to prove, by a preponderance of the evidence, that discrimination occurred as alleged, is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 2019002478 9 In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 January 16, 2020 Date