Yulanda L. Curtis,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

2019004227 (E.E.O.C. Aug. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Yulanda L. Curtis,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 2019004227

Request No. 2019003339

Appeal No. 2019000892

Hearing No. 570-2016-00142X

Agency No. 2004-0001-2015102007

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019003339, issued June 19, 2019.
EEOC Regulations provide that the Commission may, in its discretion, grant a request to
reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where
the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

BACKGROUND

During the period at issue, Complainant worked as an Attorney Advisor, GS-0905-09, and
Associate Counsel, GS-0905-11/12, at the Agency’s Board of Veterans’ Appeals (BVA) in
Washington, D.C. In her underlying complaint, Complainant alleged that the Agency subjected

1 Although it is the Commission’s practice to assign a pseudonym to a decision that is to be
published, Complainant specifically requested that her real name be used on the decision, rather
than a pseudonym.
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her to discrimination based on race (African-American) and disability (scoliosis) when she was
hired at the GS-9, Step 1 level in June 2013, which was a lower step than a former Associate
Counsel (Comparative 1) who was hired at the GS-9, Step 6 level in June 2014.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ) and the case was assigned to AJ1. On October 17, 2016, AJ1 conducted an Initial
Conference and issued a Case Management Order (CMO) authorizing the parties to engage in
discovery. In the CMO, AJ1 defined the sole issue as stated above.

On July 18, 2017, the Agency filed a Motion to Dismiss, or in the alternative, for a Decision
without a Hearing. On October 4, 2018, the case was assigned to a different AJ (AJ2). On October
11, 2018, AJ2 incorporated the Agency’s Statement of Undisputed Facts in her decision and
granted the Agency’s Motion to Dismiss the complaint for untimely EEO Counselor contact. In
the alternative, the AJ granted summary judgment on the merits of the complaint in favor of the
Agency. On October 22, 2018, the Agency issued a final order, fully implementing the AJ’s
decision.

In EEOC Appeal No. 2019000892 (May 7, 2019), based on the record before it, the Commission
determined that Complainant’s complaint was properly dismissed on the grounds of untimely
counselor contact. The Commission found that Complainant’s initial EEO Counselor contact
occurred more than 45 days after she suspected, or reasonably should have suspected,
discrimination, and was therefore untimely. That decision did not address the merits of
Complainant’s claim.

Our prior decision, EEOC Request No. 20190003339, vacated the decision in EEOC Appeal No.
2019000892, noting that Complainant’s claim of discrimination had not been properly addressed
therein. After analyzing the claim however, we affirmed the Agency’s final order, concluding that
Complainant did not establish that discrimination occurred.

CONTENTIONS ON RECONSIDERATION

Complainant Brief

In her request for reconsideration, Complainant asserts that the Commission erred by narrowly
construing her complaint. Complainant argues that a fair reading of her complaint is that similarly-
situated White comparators were treated more favorably in terms of the procedures used to set
salaries.

Complainant argues that the Commission erred in finding that Comparative 1 had the requisite
experience for hiring beyond Step 1. Complainant contends that Comparative 1’s experience at a
Veterans’ Law Clinic, pro-rated to account for Comparative 1’s part-time status, did not equal one
year of specialized veteran legal experience or one year of time in grade as a GS-11. Complainant
claims that the Agency’s argument that Comparative 1’s clinic experience was considered
specialized experience is pretext based on a management official’s statement that she spoke with
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members of the selection panel prior to mediation in 2015 and learned then that Comparative 1’s
experience was very specialized. Complainant argues that there is no contemporaneous evidence
in the record to support Comparative 1’s experience.

Complainant maintains that the Agency refused to provide her with race and disability data during
the investigation and discovery. In support of her claim, Complainant avers that the record
conflicts with the Agency’s assertion that no such data existed. Complainant accuses the Agency
of attempting to prevent her submissions on appeal with respect to the race of selectees and insists
that the Agency bears responsibility for her not possessing the information during the investigation
and hearing phase.

Complainant further claims that the Commission erred in finding that there was no evidence
demonstrating that the alleged responsible management officials had knowledge of Complainant’s
race. Complainant emphasizes that the responsible management officials could ascertain the race
of applicants based on the names of the applicants. In doing so, Complainant references a working
paper entitled “Are Emily and Greg more Employable than Lakisha and Jamal?” Complainant
noted that in the working paper, her name was listed as an African-American sounding name while
Comparative 1’s name was listed as a White-sounding name, and that, based on their respective
names, Complainant and Comparative 1’s races would be obvious. Complainant argues that
EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006), supports her argument because the working
paper was authored by the expert witness the Commission utilized in that case to support a finding
that the responsible management officials suspected Complainant’s race based on names on
resumes. In further support of her argument, Complainant points to a Commission decision in
which the Commission presumed the race of an individual based on a surname. Finally,
Complainant asserts that genuine disputes of material facts remain.

Agency Brief

In opposing Complainant’s request for reconsideration, the Agency stresses that Complainant
failed to meet her burden of proof with respect to her claims and failed to proffer any erroneous
interpretation of fact or law by the Commission to establish that the alleged actions were based on
discriminatory animus. The Agency adds that Complainant failed to establish that the appellate
decision would have a substantial impact on the policies, practices, or operations of the Agency.

With respect to Complainant’s argument that the Commission too-narrowly construed her
complaint, the Agency contends that the argument is repetitive and misplaced, noting that
Complainant asserted the same argument in her prior appeal brief on October 31, 2018. The
Agency adds that the Commission independently examined the Agency’s procedures used in
setting salaries and found that they were uniformly applied to applicants, notwithstanding any
protected class. The Agency notes that Complainant appears to assert a disparate-impact claim
and stresses that at no point during the pendency of this matter did Complainant challenge the
complaint as defined. The Agency maintains that, as such, Complainant cannot raise this argument
on appeal.

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As for Complainant’s argument that the record was inadequately developed, the Agency maintains
that, not only is Complainant reasserting her Motion for Sanctions regarding discovery, but she is
also attempting to introduce new evidence that was readily available during litigation. Similarly,
the Agency contends that Complainant’s argument that the RMOs had implicit knowledge of her
race based on her name serves as an attempt to utilize the reconsideration process as a second
appeal. The Agency argues that the Commission previously considered Complainant’s arguments
related to EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006).

With respect to the argument that there is no contemporaneous evidence that Comparative 1’s
experience at the Veterans’ Law Clinic was taken into consideration when her salary determination
was made, the Agency asserts that there is no statutory or regulatory authority requiring an agency
to make contemporaneous documentation of the considerations for hiring.

As for Complainant’s allegation that disputes of material fact remain because it is unclear who
maintains the authority to assign grades and steps, the Agency avers that there is no dispute of
material fact because there is ample evidence that Complainant’s lack of legal experience led to
her hiring as a GS-9.

The Agency concludes that Complainant’s arguments in support of her reconsideration request
recite the same alleged facts and statements that Complainant presented in her initial appeal and
prior request for reconsideration. Accordingly, the Agency requests that the Commission deny
Complainant’s reconsideration request.

ANALYSIS AND FINDINGS

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at Chap. 9, VII. A. (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC
Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact
or law, or will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not done so here. We have carefully considered Complainant’s June 24, 2019
appellate brief and supplemental documents and determined that they do not affect our disposition
of the prior decision. Further, we do not find that disputes of material fact remain, as Complainant
asserts.

As an initial matter, we will address Complainant’s assertion that the record is inadequately
developed. After thoroughly reviewing the evidence of record, we find that the investigation in
this case was sufficient to meet the regulatory standard under 29 C.F.R. § 1614.108. The
investigative file reflected extensive discovery and testimony. Moreover, the data Complainant
alleges the Agency withheld does not negate the evidence in the record showing that multiple
individuals outside of Complainant’s protected classes also received offers to start at the GS-9,
Step 1 level.

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In our prior decision, we specifically noted that Complainant did not challenge the definition of
her complaint. In her reconsideration request, Complainant takes issue with the construction of
her claim and states that at “no point during the course of the informal and formal complaint,
investigation, discovery, summary judgment pleadings, or appeal brief, did [Complainant] intimate
that her complaint was about anything other than members outside her protected class being treated
more favorably in terms of the procedures used to set initial salaries.” In support, Complainant
alleges that nothing in AJ2’s decision intimated that the Commission construed her complaint as
narrowly as it did. This argument is without merit, however, because Complainant held knowledge
of the accepted claim throughout the pendency of this matter. Even accepting Complainant’s
argument that her complaint should reflect that White comparators were treated more favorably in
terms of the procedures used to set initial salaries rather than solely Comparative 1, we note that
our prior decision considered multiple individuals outside of Complainant’s protected classes,
including those with more experience than Complainant. Considering the record as a whole, it
shows that the Agency set the salaries of similarly-situated individuals outside of Complainant’s
protected class at the GS-9, Step 1 level. Accordingly, we are unpersuaded by Complainant’s
argument that the accepted claim is in direct conflict with the factual record and constitutes a
material error of fact or law.

Accepting Complainant’s argument that the responsible management officials could suspect that
Complainant was African-American based on her name, that knowledge, without more, does not
establish discriminatory animus. The knowledge must be linked to discrimination. As noted in
our prior decision, even if we were to assume that the responsible management officials were
aware of Complainant’s race and disability, Complainant did not show that she had the requisite
level of experience to be hired beyond Step 1. On the other hand, the Agency believed, albeit
mistakenly, that Comparative 1 had the requisite experience. Complainant contends that there is
no evidence to support the Agency’s claim that Comparative 1’s clinic experience was considered
at the time of the wage decision, based on Person C stating that she spoke with members of the
selection panel. However, in addition to that discussion, Person C maintained that Comparative 1
received an appointment at the GS-9, Step 6 level based on the erroneous belief that she had been
a GS-11 for more than a year. Moreover, the record evidence shows that the Agency’s reasons for
setting Complainant’s salary at the GS-9, Step 1 level remained the same at the time of her hire in
2013, at the time of Comparative 1’s hire in 2014, and throughout the pendency of this matter, i.e.,
the Agency believed Complainant lacked the specialized experience and time in grade for higher
compensation.

While the Agency made a mistake in considering Comparative 1’s prior experience and salary
history, an agency may make a mistake so long as there is no evidence to indicate that those
mistakes were based on Complainant’s protected classes. See Hsieh v. Dep't of Veterans Affairs,
EEOC Appeal No. 0120120980 (June 4, 2012) (discrimination not found where there was a
mistaken application of rule in selection process); Carroll v. Dep't of Justice, EEOC Appeal No.
01A20985 (Jan. 21, 2003) (discrimination not found where there was inadvertent failure to
consider prior work experience). Pretext analysis is concerned with whether an action was
motivated by discriminatory animus. Further, we have consistently held that we will not second
guess an Agency’s assessment of qualifications so long as the decision is not based upon unlawful
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criteria. See Texas Dep’t of Comm'y Affairs v. Burdine, 450 U.S. 248, 259 (1981); Brown v. Dep't
of the Army, EEOC Appeal No. 01970189 (Feb. 25, 2000).

Complainant stresses that the Agency’s mistakes during the 2013 and 2014 hiring waves serve as
evidence of pretext. The focus of pretext is not whether the Agency made a mistake or exercised
poor judgment. Pretext does not require that an agency’s actions be impeccable. Rather, the focus
is on whether there was discriminatory animus on the part of the Agency when it engaged in the
challenged conduct. Here, we recognize that the Agency made a mistake with respect to setting
Comparative 1’s salary; however, we find that there is no evidence that the errors were due to
discriminatory animus toward Complainant’s race or disability. Complainant did not rebut the
Agency’s assertion that Comparative 1 was placed at the GS-9, Step 6 level based on mistaken
beliefs regarding specialized experience and time in grade at the GS-11, Step 2 level.
Consequently, we find that in setting Complainant and Comparative 1’s salaries, the Agency did
not engage in a prohibited discriminatory act, but instead acted on inaccurate information.

Regarding Complainant’s argument that the Agency refused to provide Complainant with race and
disability data during the investigation and discovery, the data that Complainant received in
connection with her Freedom of Information Act (FOIA) request belies her argument that the
Agency acted with discriminatory animus in terms of the procedures used to set initial salaries.
For example, documents obtained under the FOIA and submitted by Complainant indicate that in
2013, more members of Complainant’s protected class of race were hired at the GS-11 level than
the GS-9 level. Moreover, the record includes sufficient evidence showing that similarly-situated
individuals outside of Complainant’s protected classes were not treated more favorably than
Complainant.

Complainant proffered two individuals outside of her protected class as comparators who were
selected at the GS-11 level with less than one year of legal experience and no specialized
experience. However, Complainant’s argument indicates that these individuals are not suitable
comparators, as they were interviewed by different interview panel members, and Complainant
acknowledged that neither comparator participated in salary negotiations. As for Complainant’s
argument that disparities existed between other African-American and White candidates, neither
of the candidates are similarly situated to Complainant.

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
DENY the request. The decision in EEOC Request No. 2019003339 remains the Commission’s
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.
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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.

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

August 8, 2019
Date