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

Equal Employment Opportunity Commission

Aug 16, 2019

0120181536 (E.E.O.C. Aug. 16, 2019)

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

Keri C.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120181536

Agency No. HHS-OS-0029-2017

DECISION

On April 6, 2018, 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
March 7, 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 finding no discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511-
12 at the Agency’s Office of the Inspector General (OIG), Office of Audit Services in
Birmingham, Alabama. According to the record, on November 16, 2016, Complainant applied
online for a Senior Auditor, GS-13 promotional position advertised under Vacancy
Announcement Number (VAN): HHS-OIG-OAS-MP-1845457-TLG. Her first-level supervisor
(S1), a Supervisory Auditor (also known as Assistant Regional Inspector General for Audit
Services or ARIGAS), GS-0511-14, in Atlanta, Georgia recommended Complainant for the
position along with an African American male and a Caucasian male, both auditors. S1 stated
that he recommended them all because their 2015 performance ratings were Excellent. S1
presented his recommendations to the Selecting Official (SO) who was his immediate supervisor.

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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SO is the Regional Inspector General, GS-0511-15, of the Agency’s Office of Audit Services,
Region IV, in Atlanta, Georgia and Complainant’s second-level supervisor since October 2011.

S1 explained that there were four panels consisting of three ARIGAS who reviewed candidate
applications, conducted interviews and made recommendations to the SO. He noted that only
candidates with an average score of 70 or higher were recommended for promotion, and SO
made selections based on interview scores, supervisory input, 2015 performance ratings,
candidate application materials, regional office, needs, workload, and candidate potential. S1
indicated that he served on the interview panels for positions available in Atlanta, Georgia and
Jacksonville, Florida, and in doing so, he only reviewed application packages and conducted
interviews for those who applied from those offices. However, as it related to Complainant, he
clarified that Complainant was a candidate for the Birmingham, Alabama location, so he did not
review her application package or interview her; instead, he only provided supervisory input to
SO and recommended that Complainant be promoted to the GS-13 level.

SO stated that three ARIGAS interviewed Complainant on January 11, 2017. Following her
interview, Complainant scored 210 out of 300 points which caused her to be ranked 10 out of 19
candidates (score of 70). SO recalled that the panel recommended two African American men, an
Asian American male, two Caucasian men, and one African American woman for promotion,
and SO selected them all because they were the top-rated applicants. SO explained she did not
select Complainant because the scores Complainant received from the interview panel did not
place Complainant in a position where SO could select Complainant over applicants with higher
overall scores and more experience performing senior auditor functions. Complainant was
notified of her nonselection on or about January 24, 2017. Complainant said, and SO confirmed,
that SO told Complainant that she did not select Complainant for promotion because
Complainant lacked communication skills and her interview score was low in comparison to the
selectees.

On May 30, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American) and sex (female) when, on or about January
24, 2017, she was notified that she was not selected for the Senior Auditor, GS-13, position
advertised under VAN HHS-OIG-OAS-MP-1845457-TLG. Complainant asserted that she was
not selected for the promotion because S1 only recommended a Caucasian male employee
(Selectee-1) for promotion, and did not recommend any African-American employees despite
that they had trained Selectee-1 who only had four years’ experience. Complainant also
contended that she was better qualified than the selectees because she has Bachelor’s and
Master’s degrees in accounting, 14 years’ accounting experience, and has trained and developed
several employees including Selectee-1. Complainant further noted that communicating is her
personal strength as evidenced by the positive responses she received from a training she
conducted in July 2017, and that management had never noted her communication was an area of
deficiency. Lastly, Complainant claimed not to have been selected for promotion because of her
sex because only one female was selected for promotion out of the seven that were promoted.

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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. 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 her to discrimination as alleged.

The Agency found that Complainant established a prima facie case of disparate treatment based
on race and sex. However, it also found that management articulated legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to demonstrate were a
pretext for discrimination based on her race or sex. Specifically, the Agency noted that, contrary
to Complainant’s supposition that S1 does not recommend African Americans for promotions,
S1 did recommend Complainant and a Black male auditor for the promotion, and provided
positive supervisory input about both to SO. The Agency further noted that S1 was not on
Complainant’s Birmingham interview panel, and thus was not responsible for the scores that
placed her below the selectees. Additionally, S1 was not the selecting official and thus did not
have the final word regarding the promotion decision. Finally, the Agency observed that out of
the seven selectees, three were African American and of those three, one was a Black woman,
thereby undermining Complainant’s claim that African American and Black female auditors are
not promoted in the Agency.

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”).

Complainant argues on appeal that, in addition to disagreeing with the Agency’s assessment that
she was not chosen because of her communication skills in the interview, that reason is
pretextual since management was not able to produce the interview notes that indicated the views
of the selection panel, precluding her from rebutting them. She asserts that since the Agency
conceded that she was more experienced than Selectee-1, the Commission should draw an
adverse inference from the absence of the interview notes and conclude that she has presented
sufficient proof that she was the better qualified candidate for the promotion.

Our review of the record reveals that Complainant has not shown that the Agency’s evaluation of
Complainant’s qualifications, along with the Agency’s assessment of her interview performance,
was unreasonable to such an extent as to suggest that the proffered reason was not the actual
motivation.
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SO stated in her affidavit that the interview panel provided the following information about the
successful candidates when they gave their recommendations:

• Selectee Black male
o Scored 266 out of a possible 300 points for interviewer and supervisory input
o Ranked first out of 19 candidates with an average score of 89
o Has a Master of Professional Accounting
o Is a Certified Information Systems Auditor
o Has Experience conducting IT audits of state Medicaid systems, electron health records,
security of medical devices
o Has performed risk assessments for Medicaid, Recovery Act, and ACA.
o Has experience briefing management

• Selectee Asian male
o Scored 249 out of a possible 300 points for interviewer and supervisory input
o Ranked second out of 19 candidates with an average score of 83
o Was key player on team that used Enterprise Risk Management to develop a tool to
assess the purchase and travel card processes of HHS OPDIVs
o Helped to develop an audit idea on payments made to deceased beneficiaries under the
Medicaid managed care program

• Selectee Black male
o Scored 237 out of a possible 300 points for interviewer and supervisory input
o Ranked third out of 19 candidates with an average score of 79
o Has an MBA
o He was a key member of the team responsible for determining that CDC appropriately
awarded Ebola grants to foreign countries

• Selectee White male
o Scored 235 out of a possible 300 points for interviewer and supervisory input
o Ranked fourth out of 19 candidates with an average score of 77
o He is working on the HHS-OIG and USAID-OIG joint project. He is heading up an
audit on the use of grant funds by foreign countries to stand up or improve public health
agencies.

• Selectee Caucasian male - Birmingham office
o Scored 231 out of a possible 300 points for interviewer and supervisory input
o Ranked fifth out of 19 candidates with an average score of 76
o Has Master of Accountancy
o Is a Certified Public Accountant
o Has a working knowledge of gathering and analyzing data and information, including
knowing how to use a variety of software, including One PI Business Objects and
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Microsoft Access, as well as CMS databases. Access to complete and accurate data is
vital for the Agency’s audit work and statistical applications.
o Has experience working on Medicare and Medicaid issues and has been auditor-in-
charge for the last three audits. He is the auditor-in-charge of the current Kentucky
Medicaid school-based administrative costs audit should result in $30 million in
questioned costs.
o He is a go getter with a good understanding and application of the OIG's goals, the
importance of delivering timely and reliable results, motivating and teaching new hires,
and is currently developing an audit idea that has merit

• Selectee White male
o Scored 226 out of a possible 300 points for interviewer and supervisory input
o Ranked sixth out of 19 candidates with an average score of 75
o Has Master's Degree in Accounting
o Is a Certified Fraud Examiner
o Has experience collaborating with senior investigators from various organizations
including OIG's Office of investigations, Drug Enforcement Agency, and U.S. Marshals
o Working as a vital team member on Ebola and GHSA audits

• Selectee African American female
o Scored 224 out of a possible 300 points for interviewer and supervisory input
o Ranked seventh out of 19 candidates with an average score of 75
o Has Master of Science in Accounting
o Is a Certified Public Accountant
o Is a Certified Fraud Examiner
o Was part of a team that audited Alabama's administrative costs claimed under the
Medicaid school-based program and identified $75.3M in questioned costs
o Has been part of the PEPFAR (President's Emergency Plan for AIDS Relief) that
conducts international work of grant funds awarded by CDC. This requires representing
the OIG and the United States when meeting with Ambassadors, CDC Officials, Ministry
of Health Officials, USAID Mission Controllers and representative from The Global
Fund (Switzerland). Reported findings have helped CDC to address poor management of
grant funds.

According to SO, the interview panel provided the following about Complainant:

o Scored 210 out of a possible 300 points for interviewer and supervisory input
o Ranked tenth out of 19 candidates with an average score of 70
o Has a Master's Degree

o Was part of a team that audited the administrative costs claimed under the Medicaid
school-based program
o Was a new member of the team that did international audits.

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We find that this evidence was sufficient to sustain management’s articulated reasons for not
selecting Complainant even in the absence of the actual interview notes. In that Complainant
failed to produce any evidence that her race or sex motivated her nonselection, we find no error
in the Agency’s determination that Complainant failed to meet her burden of establishing that the
Agency's proffered reason was pretext when she did not demonstrate that her objective
qualifications and/or interview responses were plainly superior to those of selectees or provided
direct or circumstantial evidence creating an inference that she was not selected because of any
protected factor.

CONCLUSION

Accordingly, the Commission AFFIRMS the Agency’s decision 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.
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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

August 16, 2019
Date