Hipolito P.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 14, 2020

2020000181 (E.E.O.C. Sep. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hipolito P.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020000181 Hearing No. 410-2017-00348X Agency No. HHS-OS-0080-2016 DECISION On October 7, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 6, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Senior Auditor, GS-13, at the Agency’s Office of Audit Services (OAS), Office is Inspector General (OIG) in Atlanta, Georgia. On October 17, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on sex (male) and age (over 40) when: 1. on or about August 19, 2016, Complainant was notified he was not selected for a Supervisory Auditor, GS-14, position advertised under Vacancy Announcement Number HHS-OIG-OAS-MP-1732139-TLG; and 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. 2 2020000181 2. Complainant’s 2015 Performance Management Appraisal Program (PMAP) was lowered from “Outstanding” to “Excellent.” After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on July 2, 2019. Complainant responded to the Notice of Intent. On August 5, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. 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). 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. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 3 2020000181 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period, Complainant was employed as a Senior Auditor, GS-13, at the Agency’s Office of Audit Services (OAS), Office is Inspector General (OIG) in Atlanta, Georgia. Complainant’s immediate supervisor was the Audit Manager. The Regional Inspector General was Complainant’s second-line supervisor. Regarding claim 1, Complainant asserted that on or about August 19, 2016, Complainant was notified he was not selected for a Supervisory Auditor, GS-14, position advertised under Vacancy Announcement Number HHS-OIG-OAS-MP-1732139-TLG. The AJ noted that two selectees were selected for the Supervisory Auditor positions. Complainant claimed that he was “demonstrably” superior to a named selectee (“Selectee 1”) for the subject position.2 In his affidavit, Complainant stated that he was a Certified Public Accountant (CPA) while Selectee 1 was not. The AJ further noted that the job announcement for the Supervisory Auditor had an educational requirement (bachelor’s degree in accounting, or a related field such as business administration) or alternatively, an education and experience requirement - 4 years’ experience in accountant or equivalent in additional to either 24 hour semester hours in auditing or a certificate as a CPA or a Certified Internal Auditor or substantial course work in accounting or auditing. The AJ stated that the resume that Complainant submitted for the subject position indicates that he has a bachelor’s degree in Business Administration with a minor in Accounting, and that he is a Certified Auditor. Selectee 1’s resume indicated that she has a Bachelor of Science in Accounting, a Master of Business Administration, and had several years of experience as a Senior Auditor within the Agency. The AJ determined that the evidence “does not indicate that Complainant was clearly the superior candidate based on the requirements noted in the job announcement, and the information presented by Complainant or [selectee] in application for position at issue.” Complainant asserted that the Agency changed its application process to “throw out” his Knowledge, Skills, and Abilities (KSAs) and include a manager’s assessment as a means to ensure his non-selection for the subject position. 2 The record reflects that Complainant did not contest the qualification of the second selectee (“Selectee 2”) 4 2020000181 However, the AJ stated that a review of the job announcement provided that applicants would have to respond to self-assessment questions that were related to their KSAs as part of their application, and “as a result, they did not have to provide a narrative response to KSAs…I find that the KSAs were not ‘thrown’ out but were imbedded in the application process, based on the evidence of record.” The AJ also noted that there was no evidence, that the Agency had made “any changes [which] were part of a greater plot to exclude him from the position.” As to a Manager’s Evaluation in the application process, the AJ noted that the selecting official asserted that she consulted with the interview panelists as well as requested supervisory input from management, and the process was the same for all the candidates, including Complainant, Selectee 1, and Selectee 2. The Regional Inspector General for Audit Services (female, over 40), also Complainant’s second- line supervisor, stated that she was the selecting official for the subject position. The record reflects that 10 applicants were referred to the selecting official for consideration. She explained that she implemented an interview panel of four Agency officials. All candidates were asked the same 16 questions. Following the interviews, the selecting official stated that she chose Selectee 1 and Selectee 2 for the subject positions. Specifically, the selecting official stated “I made my selection based on the interview scores, supervisory input, CY 15 rating and documentation that the candidates submitted when applying for the position.” The record reflects that out of a possible of 300 points, Selectee 1 ranked first with had a score of 293 points while Selectee 2 had a score of 274 points. Complainant was ranked last with a score of 176 points. The selecting official explained that she did not select Complainant for the subject position because the two selectees had the highest scores while Complainant was ranked last. She acknowledged that Complainant has been working in federal service longer than Selectee 1. The selecting official stated, however, Selectee 1 “has been engaged in a cross-section of more difficult audits, has represented OAS during meetings with HHS executive management (including the Chief of Staff for [Secretary] and the COO for CDC), has collaborated with ranking officials from USAID on a series of audits and reports to Congress, is the statistical specialist for the regional office, assists the new hire coordinator, and assists her audit manager with monitoring the travel budget for their team.”3 With regard to Selectee 2, the selecting official noted that she is a CPA and had extensive experience “ramping up” the first body of international work by engaging in President’s Emergency Plan for HIV/AIDS Relief (PEPFAR). She further stated that Selectee 2 negotiated, planned and managed a guaranteed annual foreign audit budget of $1.5 million which the Agency received from the State Department. 3 COO is an abbreviation for Chief Operating Officer and CDC is an abbreviation for Center of Disease Control. 5 2020000181 The selecting official stated that Selectee 2 prepares the Agency’s OIG OAS portion of the annual PEPFAR Coordinated Audit Plan which requires coordination with the USAID, State Department, and Health and Human Services Offices of Inspector General for Oversight of Foreign Assistance to Combat HIV/AIDS, Tuberculosis, and Malaria. Furthermore, Selectee 2 has planned, prepared and received audit work and international travel. The selecting stated that Complainant’s experience is focused on grants provided by National Institutes of Health (NIH) to colleges and universities. He also assists the Office of Investigations and the Assistant U.S. Attorney on cases and depositions. The selecting official noted that Complainant made 15 presentations to various organizations and taught a cost transfer class at Self-Employed Contributions Act (SECA) with Vanderbilt University representatives. Moreover, the selecting official stated that Complainant’s sex and age were not factors in her decision to select the two selectees. One of the four panelists, an OIG representative (male, over 40) explained that there was a structured interview and “each candidate was asked the same 16 questions. We took turns asking questions and all of us took notes. The candidates were scored individually.” He stated that the panel had approximately 15 minutes following each interview to discuss the candidates “but we did not get into specifics too much.” The panelist stated that Selectee 1’s interview “was outstanding. Of all the candidates, I scored her the highest by a large margin. Her answers were of high quality and she exhibited depth, breadth, and detail in her responses. [Selectee 1] was articulate and high energy. She provided excellent examples in her answers. She exhibited experience, knowledge, and commitment throughout her interview. I don’t know [Selectee 1], but her interview was fantastic in my opinion.” As for Selectee 2, the panelist stated that he was not on the panel during her interview. With respect to Complainant’s interview, the panelist stated it “was below average. I honestly felt he was a bit rough around the edges, and he could have been much more prepared than he was. His responses lacked depth and quality, and for one question, he had no answer at all. [Complainant] was asked to describe his non-audit responsibilities and the impact they had on the office and he had nothing to say. Other responses were also vague and sometimes he did not respond until prompted.” The Director, Grants and Internal Activities Division (female, over 40) stated that she was part of the interview panel. She explained that Selectee 2 “scored as one of my top candidates. I had two candidates tied for second, and [Selectee 2] was third. She gave very detailed responses about the work she conducted, as well as explained her supervisory experience. She also addressed her wide range of experience dealing with multiple levels of management. Her confidence and professionalism was additionally displayed during the interview. Further, the Director stated that Selectee 1 was her top candidate because she was “well prepared, articulate, and posted. 6 2020000181 She provided detailed responses that captured the breadth of her work, experiences, and diverse background. She had worked in multiple areas of HHS programs and had other key functional responsibilities. In addition to auditing, she had other responsibilities that she oversaw and led, to include exposure in communicating with senior management officials and Congress, and working with eternal parties. The Director stated that she felt that Complainant’s responses to the interview questions were “not comprehensive.” For instance, she noted that several of Complainant’s responses “did not clearly answer the questions or were not fully responded too. Also, there were times when he used language that was unfamiliar to me, specifically, he referenced abbreviations that I did not understand and it was difficult to follow what he was talking about. For one question regarding the impact of his non-audit responsibilities, he did not provide an answer at all. His approach to sharing information with others focused on providing information when asked as opposed to proactively exchanging information.” Regarding claim 2, Complainant alleged that his 2015 PMAP was lowered from “Outstanding” to “Excellent.” The AJ noted that Complainant averred that his score was lowered so that Selectee 1 could be rated higher “fails to attribute such change in his evaluation to his sex or age. Also, Complainant raises no genuine dispute of material fact nor asserts pretext concerning [supervisor’s] explanation that Complainant failed to articulate in his self-assessment for his performance evaluation, how the critical elements were reflected in his performance , which ultimately affected his performance evaluation.” The Audit Manager (male, over 40), also Complainant’s supervisor, explained that performance ratings are based on his observations of performance and the employee’s self-assessment of their performance. He stated that he gave Complainant a rating of “Excellent” on three of four critical elements as follows Collaborating with Others, Thinking Critically, and Written and Oral Communication. The supervisor also noted that Complainant’s self-assessment “did not describe what critical thinking skills or techniques that he used in performing the activities he described or explain why the critical thinking skills he may have used merited an “Outstanding” rating.” Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. With regard to his non-selection, the record showed that the two selectees did well during their interviews and had the high scores while Complainant did not do well during his interview and was ranked last with low scores. Regarding Complainant’s lowered PMAP score, he received an “excellent” rating based on three critical elements and he also failed to do his self-assessment of his performance. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his sex or age. 7 2020000181 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment, finding no discrimination. 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). 8 2020000181 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 September 14, 2020 Date