0120171123
04-20-2018
Taylor Z.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Taylor Z.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120171123
Agency No. OBD-2015-02133
DECISION
On February 1, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 25, 2017, final decision concerning his 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.
ISSUE PRESENTED
Whether Complainant established that he was discriminated against when he was not selected for the position of GS-14 Supervisory Security Specialist.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Specialist, GS-0080-13, on the Security and Emergency Planning Staff, Litigation Security Group ("LSG"), at the Agency's facility in Washington, D.C.
On October 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic) and/or national origin (Puerto Rican) when he was not selected for the position of GS-14 Supervisory Security Specialist.
The Agency accepted the complaint and conducted an investigation. Evidence gathered during the indicates that Complainant stated that his duties as a Security Specialist included serving as the IT Program Manager, Information Systems Security Manager, Property Custodian Officer, Communications Security Property Custodian Officer, and the Sensitive Compartmented Information Facility Control Officer. Complainant also asserted that he "has a law degree, has worked for the FBI, and has security experience and supervisory experience." His resume, however, states that Complainant served as an IT security team leader and had supervised inmates while serving as a GS-7 Correctional Officer with the Federal Bureau of Prisons, but contains no other information concerning supervisory positions.
Complainant stated that he had worked in LSG since 2007. His supervisor (S-1) was Caucasian, and the selecting official for the position he sought (M-1) was also Caucasian.
Complainant's Version of the Interview and Selection Process
Complainant applied for the Supervisory Security Specialist positon in April 2015. In June 2015, he was interviewed by M-1 and two other individuals (both Caucasian). Complainant stated that he believed the two other interviewers were friends of M-1 and were not familiar with the LSG mission.
The panel interviewed seven (7) applicants. Complainant was one of three (3) applicants to successfully make it to a second round of interviews on July 23, 2015, by the same interviewers. Complainant said the second interview was "more personal." For example, he said that M-1 read a statement to him. The statement read to him stated that the person hired for the position had to be "loyal to the Department of Justice" and had to be "totally trusted."
Complainant, stated that he was asked "inappropriate questions," such as how he thought his co-workers and the other supervisors would react if he was selected as their supervisor. He also says that he was told by M-1 during the interview that another GS-14 position was opening in another division of SEPS, and suggested that he apply for that position.
Complainant was not selected. He stated that on or about August 5, 2015, M-1 notified him of the decision. Complainant stated that he asked her if he could move to another division where he would have a better chance of promotion to GS-14. Complainant claims that M-1 told him that he could not do that, and that he was "not fit to be a GS-14 in the LSG." Complainant states that he asked her what she meant by that statement, and she "could not give him an answer."
Complainant said that the ultimate selectee for the position (C-1) was Caucasian and "had no previous supervisory experience." Complainant further stated that the LSG is comprised of Classified Information Security Officers that are all Caucasian, and support staff that are all minorities. He stated that he was told by other staff members that M-1 had a problem with his accent. He also stated that M-1 first told him that the decision not to selected him was by a two to one vote, but later told him that it was unanimous.
Complainant further stated his belief that he was not selected for the position because of his race and national origin because M-1 told two individuals that she would not hire him because she had a hard time understanding him because of his accent. Complainant stated that M-1 over the years had commented to him on "how good Hispanics are with cleaning windows, with cutting grass ... how good they worked on her home ... how good they are with their hands." Complainant stated further that M-1 told him that she "never thought minorities would be in supervisory positions." He further states that M-1 selected the two other interviewers because they lacked experience on the interview panel, as opposed to interviewers within the Litigation Security Group or within the Security and Emergency Planning Staff. He believed that the two other interviewers were "friends of hers" and she could "easily manipulate" them into selecting who she wanted to be selected.
The Agency's version of the Interview and Selection Process
The Agency described the process differently. M-1 stated that the two additional interviewers were Security Program Managers for their specific components, and that they were from outside sources. M-1 stated that she sought to have a completely neutral process.
M-1 stated that the first round of interviews included seven (7) applicants, including Complainant. The three panel members used a scoring system to rate the applicants. After the first round, three individuals, including Complainant, were selected for a second interview. M-1 said that one candidate (C-1) received a score of 11, Complainant received a score of 10, and the third candidate received a score of 14. While the Agency prepared for the final interviews, the third candidate (with the highest score) was offered and accepted another position.
Complainant and C-1 attended the second interview. M-1 states that the format for the second interview was to give the candidates an opportunity to ask questions or to provide any additional information. M-1 states that Complainant appeared to be very "agitated" and unprepared during the second interview. M-1 stated that Complainant told the panel that he had just returned from a "bad vacation." She states that in response to questions, Complainant "seemed to be all over the map" and suggested that "the panel pay more attention to his answers from his first interview."
The Interviewers unanimously agreed that C-1 performed better in responding to questions presented at the second interview than did Complainant.
Statements by Employees Interviewed During the Investigation
A review of all the affidavits from the employees in this Department shows a significant divide between the employees who occupy positions such as the Supervisory Security Specialist position, and the lower levels in the Department that provide support services. An examination of the affidavits shows that, with little exception, minority employees believe they are relegated to the lower level positions. There is no evidence in the record that the position at issue in this case has ever been occupied by a non-Caucasian employee.
Further, statements from employees familiar with Complainant's case, including a Caucasian employee, support a conclusion that Complainant did not have problems communicating because of his accent. M-1 denies making any statements about Complainant's accent, although two employees stated in their affidavits that they witnessed M-1 discuss Complainant's accent.
The Selection Committee members deny that their decision regarding Complainant was based on any factors other than the candidates' individual performances at the second interview.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The instant appeal followed. While Complainant submitted many documents on appeal that were already part of the record, he raises no new contentions on appeal.
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, 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").
In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of this decision, we will assume that Complainant has established a prima facia case of discrimination. The Agency has provided a legitimate, non-discriminatory reason for its action. The Agency contends that the Complainant did not perform to the level of C-1 at their second interview. The Agency selection committee concluded that Complainant did not provide adequate answers to questions during the second interview. Unlike the first interview, there was not a list of questions prepared for the candidates, but instead, general questions were asked along the lines of leadership skills and abilities; ability to admit to making a mistake; being able to give credit where it is due; being diplomatic and fair; listening and working with others collegially; establishing trust; understanding and supporting the direct supervisor's goals and expectations; supporting diversity; and understanding that there are different sides to every situation. There was also concern about protecting confidential information, establishing loyalty to the Department, and not divulging protected material. Both candidates were asked the same type of questions.
Complainant's second interview was very different than the first interview. Based on his responses to questions, the Agency officials found that he appeared to be "disgruntled" as a result of a vacation from which he just returned, and he spoke of how he was "unhappy" and had "marital problems." In addition, while Complainant claimed he had prior supervisory experience, making him better qualified for the position than the selectee, his resume only reflected that he had served as an IT security "team leader," and had supervised inmates while serving as a GS-7 Correctional Officer with the Federal Bureau of Prisons, but contained no other information concerning supervisory positions.
Complainant disagreed with the assessment that he did poorly in the second interview, and asserts that he was not selected because of his race and/or national origin. However, he did not request a hearing before an EEOC Administrative Judge. Where parties disagree on factual differences, an Administrative Judge is necessary to make findings of fact. There is possible evidence in this case that could support Complainant's contentions. However, without a hearing and findings of fact, Complainant is unable to prove by a preponderance of the evidence that the legitimate, non-discriminatory reasons for his non-selection, as stated by the Agency, were 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 FAD.
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. 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
_4/20/18_________________
Date
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.
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