[Redacted], Theresa E., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 2022Appeal No. 2022003003 (E.E.O.C. Nov. 2, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theresa E.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022003003 Hearing No. 480-2019-00746X Agency No. 2018-27792-FAA-06 DECISION On May 9, 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 April 12, 2022, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Operations Manager at the Agency’s Washington Air Traffic Control Center in Leesburg, Virginia. On September 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on January 20, 2018, Complainant was not selected for the position of Staff Manager, AT-2152-LK, advertised under Vacancy Announcement Number AWP-ATO-18-14ALAH-54776. 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. 2022003003 2 At the conclusion of the investigation into the complaint, 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. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s September 2, 2020 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on June 1, 2021. The AJ found that assuming arguendo that Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for the non-selection, specifically that Complainant did not perform well in the interview and that ultimately, no candidate was selected for the position at that time. The AJ further found that Complainant did not establish that the Agency’s reasons were a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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). 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 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. Complainant first contends that the Agency should be sanctioned for not issuing its final order in a timely manner, noting that the Agency took nearly a year to issue its final order. We note that the Agency’s order indicates there may have been some confusion as to the effect of the April 6, 2020 COVID-19 Guidance Memo issued by this office regarding the processing of federal sector 2022003003 3 EEO complaints in light of the Covid-19 pandemic. We find that the delay was not unreasonable under the circumstances and sanctions are not warranted. See, e.g., Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (finding sanctions not warranted for a delay of approximately a year before the decision was issued). We also conclude that there is no evidence that Complainant was prejudiced by the Agency’s delay. The AJ’s decision specifically contained a notice that if the Agency did not issue its final order in a timely manner, Complainant was entitled to file an appeal to this Commission directly from the AJ’s decision. Thus, Complainant’s right to an appeal was not significantly impacted by the Agency’s delay. We find that the AJ’s Decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed and that Complainant failed to establish a genuine dispute of material fact. We therefore find that the AJ’s issuance of a decision without a hearing was proper. We further find that the AJ’s Decision correctly identified the legal standards for Complainant to prove that she was subjected to disparate treatment on the bases of her sex and/or reprisal. We conclude that the AJ correctly found that the Agency articulated a legitimate, nondiscriminatory reason for the non-selection. The record indicates that Complainant did not interview well, an assessment that was agreed upon by all three members of the interviewing panel. One interview panelist noted that, although Complainant’s application alone was strong, in her interview, she “displayed only basic to intermediate knowledge of the skills necessary for the Staff Manager position.” See Report of Investigation (ROI) at 149-50. Similarly, the other two interviewing panelists noted that Complainant was “[n]ot a front runner or the strongest candidate [because she] lack[ed] depth and breadth on interview answers and examples,” and that Complainant was a “second-tier candidate. More development is needed.” See ROI at 152, 56. We agree with the AJ that Complainant did not establish that the Agency’s reasons were a pretext for discrimination. Complainant cannot demonstrate pretext based on her subjective assessment of her own qualifications or interview performance. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). While Complainant makes much of the fact that one of the interview panelists’ notes made an error on Complainant’s last name, such a mistake which is not related to any protected class, is not evidence of pretext. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. See Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). In this case, there is no evidence in the record to support Complainant’s assertions of discriminatory animus and it is well-settled that subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore find that Complainant failed to establish that the Agency’s actions were due to any unlawful motive. 2022003003 4 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 order finding that Complainant was not subjected to discrimination as alleged. 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. 2022003003 5 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 November 2, 2022 Date Copy with citationCopy as parenthetical citation