[Redacted], Nannette T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022000579 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nannette T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000579 Hearing No. 410-2020-00306X Agency No. ARCEJACK19SEP03811 DECISION On November 15, 2021, 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 October 13, 2021 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 for the Agency as an Environmental Engineer, GS-0819-14, at the South Atlantic Division (SAD) of the US Army Corps of Engineers in Atlanta, Georgia. On October 28, 2019, Complainant filed a formal EEO complaint claiming the Agency discriminated against her on the bases of race (African American), sex (female), age (60), and in reprisal for prior protected EEO activity when, on August 27, 2019, she was not selected for the Program Manager (Hurricane Emergency Restoration Division (HERD)), GS-0340-15 position advertised under Vacancy Announcement SCGW19616008826. 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 2022000579 The Agency accepted the complaint for investigation. The evidence developed during the investigation established that Complainant was among the 47 applicants considered for the position but was not among those selected for an interview. The ultimate selectee, chosen from among those interviewed, was a 45-year-old white female. The selecting official (white female) was the Commanding Officer of SAD. The application materials for all the candidates, including Complainant, were reviewed by a five- member panel (two white males, one white female, one African American male, one African American female), who scored each candidate’s qualifications as presented in their resume against criteria predetermined from the position description for the HERD Chief position. The selecting official was not a member of the panel and did not consider anyone other than the candidates who were interviewed. Since Complainant was not chosen for an interview, she did not move forward for consideration by the selecting official. The HERD Chief position description, which is in the record, states that the incumbent “serves as Chief of the Hurricane Emergency Restoration Division (HERD), within the Programs Directorate, South Atlantic Division (SAD). Manages the technical and administrative functions of the Division, and supervises a staff of program managers, multi-discipline professional positions, and support personnel.” The HERD Chief position also, “[m]anages and personally participates in the work of the Hurricane Emergency Restoration Division. Recommends what civil works projects should be initiated, curtailed, or emphasized; amounts of resources which should be devoted to each project; the timing of these actions; and changes in program emphasis to keep pace with changing administrative policy.” The HERD Chief position, “[p]rovides primary oversight of the Civil Works PRB follow-up actions to include… Reviews Project Management Plans, Reports, and Memoranda to determine the conformance of the report findings with authorization, budgetary, and programming policies and requirements, the adequacy of estimates-particularly with respect to Engineering and Design, the efficacy of explanation of changes in project benefits and cost estimates and reasonableness of the planning and construction schedules…”. The evidence shows that each panel member individually scored each candidate’s resume in the following categories as informed by the HERD Chief position description: Technical Experience and Knowledge (35 points), Leadership/Management Experience (30 points), Customer and Regional Experience (20 points), Self-Development (10 points), and Awards (5 points) - for a total of 100 points. Total points were then tabulated, and the panel determined that those candidates with a combined score of 358 or more would go on for an interview. Complainant received total scores from each of the panel members on the five categories of 38 points, 61 points, 85 points, 49 points, and 28 points, for a combined total of 2612 out of a possible 500 points. As her score was below the 358 cut-off, she did not move forward for an interview. All the panel members stated they scored all the resumes, including Complainant’s, based on the criteria related to the position. 2 Complainant received the 11th highest total score of the 47 candidates. 3 2022000579 One of the panel members (African American female) further explained that, “Complainant had less technical experience and knowledge, and less leadership and managerial experience relative to civil works projects” than the candidates who received higher scores by the panel. Another panel member (white female) explained Complainant’s lower score relative to those candidates chosen for an interview as follows: [Complainant] had very little experience in Civil Works and Flood Risk Management and none in the recent past. That was a key factor in my ranking of all the candidates. The position to which she applied is to lead a Temporary Division set up to exclusively to manage execution of a very unique (one of a kind) Civil Works/Emergency Supplemental Program with on-site employees and personnel across five districts. The program is being executed in a fast-paced, high profile manner. In my opinion, it was important to have someone in that role that knows Civil Works policy/budgeting/funding so to lead the team, as well as knowledge of the various studies and projects being executed in that program. This would allow facilitation of regional guidance and the ability to make recommendations to senior leaders in areas of improvement. All of the candidates that interviewed for the position were senior leaders in Civil Works in this region. All had knowledge of the studies and projects being executed. Seven candidates (four white females, three white males, ages: 46, 52, 54,55, 48, 60, 34) were selected for interviews. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s April 2, 2021 motion for a decision without a hearing. On September 9, 2021, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination or unlawful retaliation was established as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. On appeal, Complainant argues that the Agency’s reasons for failing to grant her an interview and select her for the position are based in discriminatory animus. Complainant also reiterates she is contesting the entirety of the selection process. 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). 4 2022000579 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). On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, 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, 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 for Complainant. In his decision, the AJ determined that Complainant disagreed with how her resume was scored. However, the AJ found that Complainant’s mere disagreement did not establish a prima facie case on the raised bases. The AJ found that even if a prima facie case had been established, Complainant was unable to establish that the Agency’s proffered legitimate, nondiscriminatory reasons for the selection were pretext masking discriminatory animus. The rating officials averred that Complainant was not scored high enough for an interview because the panel members judged the qualifications on her resume were not as strong for the relevant position as the applicants’ resumes who were selected for an interview. The AJ further concluded that the evidence did not show that Complainant was the plainly superior candidate over those selected for an interview. The AJ determined that Complainant relied on bare assertions and speculation, both being insufficient to establish pretext. On appeal, Complainant also argues that the Agency did not meet its burden of production. The Agency, however, provided evidence that the rating panel reviewed the application materials for each of the 47 candidates, including Complainant, and scored them on pre-determined criteria. At least some of the panel members provided specific explanations for why Complainant did not receive scores high enough to be selected for an interview. While Complainant argues that the selection process was flawed, she could establish pretext by showing that her qualifications are observably superior to those of the candidates selected for an interview. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has not met her burden by demonstrating that she was a plainly superior candidate for the position. In sum, Complainant has not proven, by a preponderance of the evidence, that management’s articulated reasons for her non-selection were a pretext for unlawful discrimination or retaliation as alleged. 5 2022000579 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation. 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. 6 2022000579 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. 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 December 19, 2022 Date