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

Equal Employment Opportunity Commission

May 5, 2022

Appeal No. 2021002758 (E.E.O.C. May. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taunya P.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021002758 Agency No. HHS-FDACDER-036-20 DECISION On March 31, 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 March 8, 2021 final decision concerning an 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND The record reflects that Complainant worked at another agency from 1982 to 1984. In October 2019, Complainant applied for two vacancies in the Agency’s Center for Drug Evaluation and Research, advertised under vacancy numbers FDACDER-20-MP-10619961 (GS-14 Regulatory Counsel) and FDACDER-20-MP-10619946 (GS-13 Regulatory Counsel). On January 6, 2020, Complainant received two notices of ineligibility stating that she was not eligible for either position. 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 2021002758 On March 16, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), age (66), and reprisal for prior protected EEO activity when: 1. On an ongoing basis since on or about December 2019, the Agency failed to appropriately review [her] complete employment application record and thus unfairly and improperly disqualified [her] application. The improper review and subsequent disqualification of [her] application involved issues including, but not limited to, the Agency’s failure to appropriately apply tenure, an illegal Certificate of Eligibles, illegal pass over without OPM approval, failure to Audit the Certificate, priority considerations, and retaliation. 2. On January 6, 2020, [Complainant] learned that [she] had been erroneously found ineligible and therefore not selected for the position of Regulatory Counsel, GS- 0301-14, advertised under vacancy announcement number FDACDER-20-MP- 10619961, due to an alleged failure to meet qualification requirements related to length of specialized experience, despite [her] more than 15 years of such experience. 3. On January 6, 2020, [Complainant] learned that [she] had been erroneously found ineligible and therefore not selected for the position of Regulatory Counsel, GS- 0301-13, advertised under vacancy announcement number FDACDER-20-MP- 10619946, due to an alleged failure to submit the requested SF-50, despite [her] documented submission of the SF-50. 4. On a continuing basis since, January 6, 2020, FDA recruitment personnel have failed to correct or explain the cited erroneous actions regarding [her] applications for vacancy announcement number FDACDER-20-MP-10619961 (GS-0301-14) and vacancy announcement number FDACDER-20-MP-10619946 (GS-0301-13), despite her January 6 and January 21, 2020 requests for correction/explanation. [Complainant] believe[s] that the Agency’s failure to respond, correct, or clarify its evaluative assessment for both positions, disclose how it reached its conclusions for the GS-14 position, and failure to confirm the processing of [her] uploaded SF-50 regarding the GS-13 position were all in retaliation and opposition to [her] EEO activity. 5. On an ongoing basis since January 6, 2020, [she] alleged that the application requirements for vacancy announcement number FDACDER-20-MP-10619961 (GS-0301-14) and vacancy announcement number FDACDER-20-MP-10619946 (GS-0301-13) were discriminatorily changed after [her] applications were submitted, since, [she] contend[s] that [she] met the original requirements. 3 2021002758 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation. The instant appeal followed. On appeal, Complainant makes numerous contentions, including, but not limited to, the deficiency of the EEO investigation, and the Agency improper redaction of demographic data and evidence which she claims supported the racial animus accusation against Agency selection officials. Complainant further stated that she had been denied due process under the Administrative Procedures Act. Complainant asserts that the Agency violated OPM policy by incorrectly considering her tenured career status from prior federal employment. Complainant maintained that if the Agency had properly considered her federal career tenure status, she would have been selected for the subject positions. 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 EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). Pursuant to 29 C.F.R. § 1614.108(b), the Agency had to develop an impartial and appropriate factual record upon which to make findings on the claims in the formal EEO complaint and define the factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. As an initial matter, we have reviewed the report of investigation and find it to be adequate. Moreover, Complainant was provided an opportunity to cure defects in an investigation, after reviewing the report of investigation by notifying the Agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By withdrawing her request for a hearing before an AJ, Complainant waived the opportunity to further develop the record through discovery and to cross examine witnesses. Cristobal F. v. U.S. Postal Serv., EEOC Appeal No. 0120180756, (June 19, 2019). Absent direct evidence of discrimination, the allocation for burden of proof in a case alleging disparate treatment discrimination is a three-step process. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant must first establish a prima facie 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 Agency’s employment decision. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 4 2021002758 The next burden shifts to the Agency to articulate a legitimate or nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Even if we were to assume that Complainant made a prima facie case, in this present matter, the Agency has presented legitimate or non-discriminatory reasons for its actions at issue. Complainant challenges the Agency’s determination that she was ineligible for the GS-14 Regional Counsel position based on the Agency’s stated reason that her specialized experience failed to meet the qualification requirements. The Agency’s Supervisory Management Analyst (African American, female, age 35) found that Complainant’s tenure status was insufficient for her to be considered eligible for the GS-14 Regulatory Counsel position. The Supervisory Management Analyst explained that the SF-50 that Complainant had submitted with her application showed that Complainant’s prior federal employment was insufficient in length and in recency for Complainant to be eligible as a status candidate. Specifically, to be an eligible status candidate Complainant needed a “1” as her tenure code. The Supervisory Management Analyst explained that in order to have a “1” tenure code, Complainant needed to have three years of federal service or have returned within three years after her prior period of federal service. Complainant’s SF-50 revealed that she had resigned before completing three years of federal service. Moreover, Complainant’s prior federal service effectively ended on October 10, 1984, which was more than three years before October 2019, when she applied for the GS-14 Regional Counsel position. Complainant also challenged the Agency’s determination that she was ineligible for the GS-13 Regulatory Counsel position, for the stated reason that her application was missing the requisite SF-50 form. The HR Specialist (African American, male, age 34) was responsible for issuing Complainant the notice of ineligibility for the GS-13 Regulatory Counsel position. The HR Specialist admitted that the stated reason for his action was incorrect because Complainant had indeed provided the requisite SF-50 form with her application. However, even if Complainant’s SF-50 had been considered correctly, then the Supervisory Management Analyst explained that Complainant had not completed three years of prior federal service before she applied for the GS-13 Regulatory Counsel position in October 2019. Regarding Claims 1 and Claim 4, Complainant contended that the Agency, not only erroneously found her ineligible, but also failed to respond appropriately to her inquiries that sought to correct the Agency’s incorrect eligibility determinations. Whereas Complainant was found ineligible for the GS-14 Regulatory Counsel position, her application for the GS-13 Regulatory Counsel position had been deemed incomplete for failure to submit a SF-50. The HR Specialist confessed that he mistakenly notified Complainant that her SF-50 was not provided, rather than that it had not established her eligibility. 5 2021002758 The HR Specialist testified that his ineligibility determination for the GS-13 Regulatory Counsel position should have been based on the same reason that the Agency had provided for the GS-14 Regulatory Counsel position. We have held, and still hold, that an administrative error, or some other basic bureaucratic mistake, without evidence of unlawful animus, is insufficient to support a finding of discrimination. Calvin D. v. Dep't of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep't of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). Although the Agency has acknowledged that it provided an inaccurate reason for Complainant’s ineligibility for the GS-13 Regulatory Counsel position, nothing in the record suggests that the Agency’s inadvertence was some effort to mask prohibited motivations for its actions. Regarding Claim 5, the Agency denied that eligibility standards were altered in a manner that caused Complainant from being hired to for the GS-13 or GS-14 Regulatory Counsel positions. Although the Agency later acknowledged that Complainant had submitted her SF-50 which proved that she had some qualifying prior service, the Agency maintained that Complainant’s having less than three years of prior federal employment meant that she was only career conditional as opposed to career status. According to the Agency, only applicants who had achieved career status were considered for the positions at issue. Overall, the record revealed that the selection process was competitive but not improper. Ultimately, Complainant was one of 74 applicants for the GS-14 position and among 97 who also applied for the GS-13 position. The selectee’s resumes evidenced more recent and relevant federal legal experience. Consequently, we conclude that any Agency error processing Complainant’s application was harmless because the preponderant evidence of record failed to persuade us that Complainant was discriminatorily non-selected. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Moreover, even if Complainant had demonstrated that her qualifications were comparable to those of the selectees, we have consistently held that Agencies have broad discretion to choose among equally qualified candidates so long as the selection decisions are not based on unlawful considerations. Lashawna L. v. Env’t Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). Additionally, because Complainant was applying for a GS-13 and GS-14 counsel vacancies, the Agency had greater discretion in its selection since such positions could be characterized as expert-level or management-level. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final Agency decision finding no discrimination or unlawful retaliation. 6 2021002758 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). 7 2021002758 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 May 5, 2022 Date