Larraine S.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120140540 (E.E.O.C. Jun. 3, 2016)

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

Larraine S.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Office of the Comptroller of the Currency),
Agency.

Appeal No. 0120140540

Hearing No. 570-2012-00526X

Agency No. OCC-11-0731-F

DECISION

Complainant filed an appeal from the Agency’s final order dated November 1, 2013, finding
no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, dated October 5, 2011, Complainant alleged discrimination based on race
(Black) and sex (female) when she was not selected for the position of Security Specialist,
Series 0080, Grade NB-V, advertised under vacancy announcement MP-AC-11-024. Upon
completion of the investigation of the complaint, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). On October 25,
2013, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period, Complainant was
employed as a Personnel Security Technician, Series 0086, Grade NB-IV, with the Agency in
Washington, D.C. Complainant claimed that she applied for the position of Security
Specialist, Series 0080, Grade NB-V, at issue on July 22, 2011, but was not selected.

The Agency Human Resources (HR) Specialist indicated that she processed the vacancy at
issue and issued the initial certificate for qualified candidates, which included Complainant and
a selectee (White, male). The Selecting Official (SO) indicated that he decided to convene
two review panelists to review the qualified candidates’ resumes and KSAs (Knowledge, Skills,
and Abilities) for the vacancy and score them using the application tracking and rating sheet.
One panelist gave Complainant a score of 10 (out of possible 18) and the selectee a score of
18; the other panelist gave Complainant a score of 12 and the selectee a score of 18.
Specifically, the panelists indicated that compared to the selectee, Complainant had no
emergency management program or information security program experience, did not have
highly controversial personnel security adjudications experience, and did not obtain Lean Six
Sigma green belt or black belt certification. The HR Specialist stated that the review panelists
provided her with their assessment, described above, and she determined Complainant not to
be a highly qualified candidate based on her score and referred the selectee to the SO who
ultimately selected the selectee for the position at issue.

The AJ noted and Complainant acknowledged that she received lower performance evaluations
for fiscal years 2010 and 2011, i.e., she received a total summary rating of 3 (4 being the

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highest rating) whereas the selectee received a rating of 4. With regard to training
opportunities prior to the selection at issue, there is no evidence that Complainant requested
and was denied training.

After a review of the evidence in the record, the AJ determined and we agree that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting her for the
position. Furthermore, Complainant failed to show that her qualifications for the position were
plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that
Complainant failed to show that the Agency’s action was motivated by discrimination as she
alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

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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

June 3, 2016
Date