[Redacted], Cristobal A., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2022002117 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal A.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2022002117 Hearing No. 570-2021-00894X Agency No. HHS-FDAORASW-112-20 DECISION On March 10, 2022, 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 1, 2022, final order concerning his 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemist, GS-12, at the Food and Drug Administration Kansas City Laboratory (KCL). In March 2020, Complainant applied for one of four Lead Interdisciplinary Scientist (Team Lead) positions, GS-13. The vacancy was open to current KCL employees with at least 52 weeks at the GS-12 level or higher and specialized experience specific to the GS-0401 (Biologist), GS-0403 (Microbiologist), or GS-1320 (Chemist) occupational series. 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. 2022002117 2 The educational qualifications specified degrees in biology, microbiology, chemistry, and/or physical science. The position also required technical competence, reasoning, leadership, writing, and oral communications. Complainant was among the 12 qualified candidates interviewed. The interview panel consisted of four panelists: Panel Member 1, Panel Member 2, Panel Member 3, and Panel Member 4. The panel members asked all interviewees the same questions and scored the candidates individually based on their responses. The scores of the panel members were forwarded to the Supervisory Administrative Management Specialist for tabulation. Once the scores were tabulated, they were sent to the Selecting Official who offered the positions to the four highest-ranked candidates, with the fifth and sixth candidates listed as alternates. Complainant ranked tenth overall and was not selected. Complainant’s score for the interviews was not in any interviewer’s top eight candidates. On October 15, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Cambodian), and color (tan) when: On July 21, 2020, Complainant learned he was not selected for one of four positions for the Lead Interdisciplinary Scientist position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on February 1, 2022. The Agency subsequently issued a final order on March 1, 2022, fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Thereafter, Complainant filed the instant 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). 2022002117 3 In order 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 has 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. At the outset, we find the record in this case was fully developed. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons for his nonselection was a pretext for discrimination. Panel Member 1 stated Complainant did not interview as well as the selectees. Panel Member 1 noted Complainant came across as though he was entitled to the job due to having a PhD, as opposed to showing he had the interpersonal skills necessary for the position. Panel Member 1 noted Complainant did not answer correctly on the understanding of Quality Management, referred to the position as “junior supervisor,” and was very focused on the work, rather than the people with which he would need to interact. Panel Member 2 stated Complainant did not provide complete answers to show understanding or experience that would support the leadership and operational support needed for the position as compared to the selectees. Panel Member 2 also noted the selectees provided examples of activities that they had been involved in that demonstrated relevant experience to the position. Panel Member 2 noted this was missing from Complainant’s responses, which made it difficult to support his readiness to take on these responsibilities. Panel Member 2 noted that while Complainant referred a lot to the technical skills of the position, which were important, he failed to show strong leadership and program management skills. The Selecting Official stated that he based his selection on the rankings of the qualified candidates provided by the interview panel. The Selecting Official noted he reviewed the applications, rankings, interview responses and notes, and found no reason to deviate his selection from the panel rankings. While Complainant has shown he was qualified for the position, he failed to show that his skills and experience made his qualifications “plainly superior” to those of the selectees. Complainant produced no evidence that the panelists scored him any differently based on any of his protected bases or that he interviewed better than any of the selectees. Further, while he argues that he had more years of service than the selectees, the Commission has held that longer years of experience do not render an applicant more qualified. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2022002117 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022002117 5 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 March 30, 2023 Date