[Redacted], Hannah C., 1 Complainant,v.Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2020004640 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hannah C.,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2020004640 Agency No. FDICEO-17-013 DECISION On August 21, 2020, 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 July 22, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Oversight Specialist, CG-13, at the Agency’s Regional Office in Dallas, Texas. Complainant’s employment consisted of several competitive service term appointments from 2010 to 2016, when she reached the maximum allowed under the competitive service appointment authority. Complainant was then selected for the position of CG-13 Contract Oversight Specialist, a two-year Schedule A term appointment from 2016 to 2018. Report of Investigation [ROI] at 65, 121. On April 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, in relevant part: 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. 2020004640 2 2. On or about January 18, 2017, Complainant’s second-line supervisor (Supervisor 2) notified Complainant that she was not selected for the Contract Oversight Specialist, CG-1101-12, position, advertised under Vacancy Announcement 2016-DALD-B0084 and 2016-DALD-B0089. Complainant states that a male (Selectee) was selected for the position. The Agency accepted the complaint for investigation. The record indicated that, on August 2, 2016, the Agency posted two vacancy announcements for one position. Complainant applied, was deemed qualified, and considered for the position. Complainant was one of 130 applicants for the position and among the 10 candidates who were interviewed. There were 3 individuals on the interview panel, including Supervisor 2 who was the selecting official. ROI at 124-25. Each panelist provided Supervisor 2 with their top five candidates. Complainant ranked fifth and she was not selected for the first position. When a second position became unexpectedly vacant, the Agency chose to fill the second spot from the same roster for the original vacancy announcement. There was no interview and the interview panel was not involved in the selection. ROI at 124, 156-57. Complainant’s first-line supervisor (Supervisor 1) served as the recommending official for the position. She recommended a former male Contract Oversight Specialist (Selectee) be selected for the position. Supervisor 1 based her recommendation specifically on Selectee’s application, his resume, and the fact that he had previously worked under Supervisor 1 for approximately six years. Supervisor 1 stated that based on his diverse background and impressive resume, Selectee was the best qualified candidate of the remaining candidates on the roster, including Complainant. ROI at 137. At the conclusion of 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 (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant only contests claim 2, arguing that the FAD should be reversed on that claim because it is based on a misapplication of the facts and the law related to discriminatory non-selection. Complainant asserts that she presented abundant evidence that the Agency’s stated legitimate reason for selecting Selectee over Complainant was pretext for discrimination. Complainant also withdraws the basis of reprisal as to this claim. Among other things, Complainant argues that she was the “clearly superior candidate,” asserting that both she and Selectee were applying for a permanent position. According to Complainant, they both had previously served in the position on a term basis. 2020004640 3 Complainant asserts that, at the time of the selection, she had served in the Contract Oversight Specialist term position for seven months longer than Selectee and had served at a higher grade than him for one and a half years. Over the previous five years, Complainant states, she had scored consistently higher on her annual performance reviews than Selectee (always earning an overall “5” whereas he always earned an overall “4”). Further, Complainant states, she scored substantially higher than Selectee on interviews preceding the selection. Complainant adds that she was ranked in the top five, while Selectee was ranked in the bottom five. Complainant argues that Supervisor 2’s reasons for not selecting her shifted over time, were internally inconsistent, and were inconsistent with the reasons proffered by Supervisor 1. Moreover, Complainant states, the Agency’s reasoning emphasized certain aspects of Selectee’s experience and skills while understating or ignoring Complainant’s similar or superior experience and skills. Complainant requests that the FAD’s finding of no discrimination on claim 2 be reversed and the appropriate relief be ordered. On appeal, the Agency asserts that the evidence does not support that its reason was a pretext for discrimination. Specifically, the Agency adds that Complainant was not plainly superior to Selectee; nor were her qualifications understated and Selectee’s overstated. According to the Agency, the fact that Supervisor 1 referred to certain skills possessed by Selectee in one document and not the other is irrelevant. Nor does referencing those skills in no particular order or omitting them in one document and not the other, lend itself to a legal argument of inconsistency or shifting reason. The Agency also argues that although Complainant claims comparable experience and higher appraisal scores, the facts establish that Selectee was the most appropriate choice for the position. The Agency asserts that Complainant’s claim cannot prevail. 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 (EEO MD-110), at Chap. 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 As a preliminary matter, we note that although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. See EEO MD-110 at Chap. 9, § IV.A.3. Here, Complainant withdrew claims 1 and 3 on all bases, and the basis of reprisal as to claim 2. 2020004640 4 Complainant’s Support Brief at 4. As such, this decision will focus only on Complainant’s claim of sex-based discrimination with respect to claim 2. Disparate Treatment - Claim 2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Supervisor 1 determined that Selectee was the best qualified candidate due to his diverse background and impressive resume and recommended him to Supervisor 2. Both Supervisor 2 and Supervisor 1 also felt that Selectee possessed greater technical skills than Complainant and worked more quickly and effectively than she did. Therefore, Supervisor 2 selected Selectee for the position. ROI at 126. Therefore, we find that the Agency has articulated a legitimate non- discriminatory reason for Complainant’s non-selection. We next turn to Complainant to show pretext. Complainant asserted, without supporting evidence, that her non-selection was motivated by gender-based discrimination noting that she is female, and Selectee is male. Complainant argued that she was the “clearly superior candidate.” To support her argument, Complainant stated that she scored substantially higher than Selectee on interviews preceding the selection. She cited to her experience, length and years of service. Complainant’s Support Brief at 1-2. Complainant also stated that the Agency’s reasoning emphasized certain aspects of Selectee’s experience and skills while understating or ignoring her own similar or superior experience and skills. Id. at 2. 2020004640 5 We note that without more, Complainant’s assertions and arguments do not prove gender-based discrimination. Moreover, interview scores were not considered in the selection process because, as Complainant herself acknowledged, the selection was made from a previous roster and there was no interview. ROI at 74-75. More importantly, we have repeatedly held that mere years of service, or length of service, does not necessarily make an individual more qualified to meet the needs of an organization. Neither does years of service automatically make an individual more qualified. The Commission will not substitute its judgment for the judgment of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See, e.g., Dominica V. v. Dep't of Agric., EEOC Appeal No. 0120182366 (Oct. 31, 2019). We find no such facts in the present case. Upon review, we find that Complainant has not shown that the Agency’s reasons for choosing Selectee over Complainant were pretext. Therefore, Complainant does not prevail. CONCLUSION 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. 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 2020004640 6 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). 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. 2020004640 7 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 14, 2022 Date