Ellan K.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0120182555 (E.E.O.C. Nov. 5, 2019)

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

Ellan K.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120182555
Hearing No. 570-2016-00144X
Agency No. FBI-2015-00028

DECISION

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 June 14, 2018, final
decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED

The issue presented is whether the Agency properly determined that Complainant did not prove
the Agency subjected her to national origin/race discrimination.

BACKGROUND

Complainant has been employed with the Agency since May 2008. Initially, Complainant worked
with the Agency as a Scholastic Honors Intern within the Laboratory Division (LD) of the
Agency’s Washington, D.C. Field Office (WFO) in Quantico, Virginia. In August 2018,
Complainant became a Physical Scientist, which primarily entailed coordinating and performing
trace evidence (fibers, hairs) examinations to assist Forensic Examiners.

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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In April 2014, Complainant applied for a posting for a GS-9 Investigative Specialist (IS) position
in Albuquerque, New Mexico. Applicants for the position were informed that they had to
successfully complete an eight-week training class and defensive driving courses to be placed into
the position. Complainant was accepted into the program for the IS position and reported for the
Basic Surveillance Course, but she did not pass the course. Complainant subsequently requested
to return to her job as a GS-12 Physical Scientist at WFO, but the Agency denied her request
because her position had been frozen because of budget constraints.

On June 10, 2014, Human Resources (HR) notified LD that Complainant would be placed in
another field office or division, and on June 18, 2014, HR offered Complainant a reassignment to
the position of GS-8 Evidence Control Technician. Complainant began working as an Evidence
Control Technician on June 29, 2014.

From August 9, 2014 to September 9, 2014, the Agency advertised a vacancy announcement for a
GS-11/12 Physical Scientist position. Complainant applied for the position and was placed on the
best qualified list. On September 25, 2015, the Unit Chief (UC) of Trace Evidence Unit (TEU)
canceled the job announcement without conducting any interviews. The TEU later hired a TEU
contractor for the Physical Scientist position at a lower grade level. The TEU contractor who was
initially selected for the position did not pass a background check, and the Agency ultimately hired
an alternative candidate, who was non-Hispanic and Caucasian.

On February 18, 2015, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the bases of race (Hispanic)2 and national origin (Puerto Rican) when:

1. In June 2014, the Trace Evidence Unit (TEU), Laboratory Division (LD) in
Quantico, Virginia informed Complainant that it was unable to reinstate her in her
former position as Physical Scientist, GS-12, in Quantico, and HR offered her a
downgraded position as an Evidence Technician, GS-8;

2. TEU LD advised Complainant of her nonselection as Physical Scientist, GS-11/12,
under Vacancy Announcement Number 07-2014-0077; and

3. In or around June 2014, the Albuquerque Division dismissed Complainant from the
Basic Surveillance Course (BSC) training; and

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently
withdrew her request. Consequently, 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
her to discrimination as alleged.

2 The Commission recognizes the term “Hispanic” to be an indication of national origin, not race.
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CONTENTIONS ON APPEAL

On appeal, Complainant maintains that she is more qualified to be a Physical Scientist because of
her “vast experience” in the position, and the Agency canceled the vacancy announcement for the
position because she is Hispanic.

The Agency requests that we affirm its final decision.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

Disparate Treatment

Generally, claims of disparate treatment such as this are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v.
Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For a 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). Once a complainant has established a prima facie case, the burden of production 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). If the Agency is successful,
the burden reverts to the 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, the 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. 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); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, for purposes of analysis, we assume, arguendo, that Complainant established a prima
facie case of discrimination. Nevertheless, we find that the Agency provided legitimate,
nondiscriminatory explanations for its actions.
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Specifically, the Agency stated that Complainant was dismissed from BSC training because she
received a summary rating of “Minimally Successfully” on four practical course exercises. The
Agency stated that Complainant was not returned to her GS-12 Physical Specialist position
because LD was over its funding staffing level because of sequestration and the loss of 104
positions. The Agency stated that it offered Complainant an Evidence Control Technician position
after she was dismissed from BSC training because it was not possible to place Complainant in
her previous position, and a nationwide search for available positions revealed that this position
was available at WFO. The Agency stated that Complainant was given an upward adjustment to
the GS-9 level two weeks after she was placed in the Evidence Control Technician position.

Additionally, the TEU UC stated that to find the best the candidate for the Physical Scientist
position advertised under Vacancy Announcement Number 07-2014-0077, the vacancy was posted
internally and externally. The TEU UC further stated that because she did not recommend
Complainant for the position and the three external candidates were not qualified, she advised the
HR Specialist to close the posting and hire directly from the current contractor staff. The TEU
UC stated that although Complainant appeared on the best qualified list, she believed that
Complainant should not have been considered for the position because she had unperformed in
terms of production and her supervisor (S1) had been planning to place her on a performance
improvement plan (PIP). The TEU UC stated that the initial selectee was chosen for the position
because he had experience and was known for being highly productive, but this selectee
subsequently did not pass a background check.

S1 stated that he told the TEU UC that Complainant should not be selected to return to TEU
because of her prior performance in the unit. S1 stated that he had several discussions with
Complainant about her productivity, attention to detail, and meeting deadlines while she worked
in TEU. S1 stated that in fiscal years 2012 and 2013, Complainant’s average cases per month were
well below the goal of seven cases for month for her position; Complainant only averaged 3.6 to
four cases in fiscal years 2012 and 2013. S1 also stated that Complainant’s performance did not
improve from 2008 to 2013.

After a thorough review of the record, we note that during a deposition, Complainant
acknowledged that she made mistakes during the practical exercises of BSC training, including
forgetting necessary equipment. Complainant also stated that the narrative statements on her
evaluations were true and accurate. Additionally, Complainant stated that she did not believe the
African-American course evaluators rated her “Minimally Successful” because she was Hispanic
or Puerto Rican, and she was not aware of any non-Hispanic trainees who failed four course
evaluations but were not dismissed from the BSC program.

In an attempt to prove pretext, Complainant maintains that she was more qualified to fill the
vacancy for the Physical Specialist position because she had previously served in the position.
However, Complainant acknowledged that her supervisor had spoken to her about her failure to
meet deadlines while in the position. Additionally, Complainant acknowledged that she did not
meet the monthly goal for cases as a Physical Scientist.
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Additionally, the record confirms that in fiscal years 2012 and 2013, Complainant averaged well
below the goal of seven cases per month for position. As such, we find it reasonable for
management to take Complainant’s past performance in the position into consideration.

Additionally, Complainant has not provided any evidence to undermine the Agency’s assertion
that it could not return her to her Physical Scientist position in June 2014 because of the effects of
sequestration and its lack of over-hire authority during this period. In fact, the record supports the
Agency’s contention that TEU was not granted over-hire authority for two Physical Scientist
positions until July 2014.

Consequently, we find that Complainant did not prove that the Agency’s nondiscriminatory
explanations are pretext for unlawful discrimination. Therefore, we find that the Agency properly
found that Complainant was not subjected to unlawful discrimination.

CONCLUSION

Accordingly, 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 decision for the reasons
set forth in this decision.

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.
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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

November 5, 2019
Date