[Redacted], Violet F., 1 Complainant,v.Richard S. Tischner, Director, Court Services and Offender Supervision Agency, Agency.Download PDFEqual Employment Opportunity CommissionMay 9, 2022Appeal No. 2021004036 (E.E.O.C. May. 9, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F.,1 Complainant, v. Richard S. Tischner, Director, Court Services and Offender Supervision Agency, Agency. Appeal No. 2021004036 Hearing No. 570-2021-00365X Agency No. CSOSA-EEO-F-20-0001 DECISION On July 10, 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 June 11, 2021, 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 Community Supervision Officer (CSO), GS-12, at the Agency’s Office of Community Supervision & Intervention Services (OCSIS), High Intensity Supervision Team 112, Branch IX in Washington, D.C. On August 7, 2019, the Agency posted a vacancy announcement for the Supervisory Community Supervision Officer (SCSO), GS-0101-13, position under Vacancy Announcement OCS-19- 059- MPP-LC. Complainant applied and was deemed eligible. ROI at 108. Complainant was not referred for an interview and she was not selected for the position. ROI at 109. 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 2021004036 According to the Deputy Associate Director, Office of Human Resources (Deputy Director 1) Complainant was not referred to the hiring manager on the candidate list because she did not meet the cut off score for the position. ROI at 194 Deputy Director 1 described the interview referral process. The Agency uses the “AVUE” Software, a talent acquisition system to build custom job applications based on the specific requirements of a position. When applying for a position, applicants answer questions regarding education, work experience, and other specific position information by following the prompts on the computer screen. Applicants respond to an assessment questionnaire, and based on those responses, the applicant receives a rating of not qualified, qualified, or highly qualified. The Human Resource Specialist (HR Specialist) then validates the determination by reviewing candidates’ applicable experiences, knowledge, skills, and abilities based on their responses and resume. HR Specialist determined that the competitively eligible applicants had to score at least 98 to be referred to the panel for an interview. HR Specialist established the cut-off score to identify the best qualified candidates based on a “natural break” in the scores. Complainant scored 93 and was not included on the competitive certificate. Two applicants, including the selectee (Selectee, male; race, religion, color, and prior EEO activity unidentified), scored 96, and were not referred on the competitive promotion certificate. They were, however, referred to the interview panel on the non-competitive certification because HR Specialist determined that they had the requisite GS-13 SCSO experience necessary to qualify as non- competitively eligible. HR Specialist did not include Complainant on the non-competitive certificate sent to the interview panel because Complainant was ineligible as she did not have prior GS-13 experience. ROI at 194-96. The record includes an email from HR Specialist in which she states there was a natural break between 98 and 96 for the position. According to HR Specialist, since there were 10 or more qualified applicants above the natural break, individuals with a score of 96 or below were not considered. ROI at 444. Selectee was selected from the non-competitive referral list. According to Deputy Director 1, an applicant is referred as non-competitive eligible based on documented evidence, such as an SF-50 Notification of Personnel Action, for non-competitive reassignment, re-promotion, or reinstatement, i.e., they are applying for a position with the same promotion potential as their current position. Complainant was not eligible to be referred as a non-competitive eligible candidate because she had never held the grade of GS-13. ROI at 197-98. On May 5, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), religion (Muslim), color (Brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of her complaint, Complainant alleged the following events: 1. On August 11, 2019, Complainant applied to an internal vacancy for Supervisory Community Supervision Officer, GS-0301-13, but was not interviewed and, subsequently, not selected; 3 2021004036 2. Complainant’s November 6, 2019, request for a transfer/reassignment was allegedly obstructed and otherwise blocked; 3. Since November 2019, up until the filing of this complaint, Complainant’s workload has been increased allegedly based on an instruction given by Complainant’s second- line supervisor, the Branch Chief (Branch Chief); 4. On July 28, August 4, September 1, and September 15, 2020, Complainant was charged as being Absent Without Leave (AWOL); 5. Since August 5, 2020, Complainant was rated poorly on her monthly case audits; 6. Complainant was denied overtime pay on August 25, August 26, and August 27, 2020; 7. On September 18, 2020, Complainant was issued a notice of proposed five (5) day suspension; and 8. On or about September 16, 2020, Complainant’s ability to perform her job function was obstructed when Complainant’s first line supervisor, the Supervisory Community Supervision Officer (SCSO [Supervisor]), revised the Alleged Violation Report (AVR) Complainant submitted to him by deleting sentences and adding what Complainant contends was “nonsensical gibberish.” The Agency accepted the complaint for investigation. 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 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 Neither Complainant nor the Agency submitted an Appeal Statement. 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, 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 4 2021004036 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 Disparate Treatment 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). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Here, regarding claim 1, Deputy Director 1 stated that Complainant was not referred for an interview because having scored 93, she did not meet the cut off score of 98 for the position, and she was not deemed non-competitively eligible because she did not have a documented GS- 13 SCSO experience. Only two applicants, including Selectee, who each scored 96, but had documented previous GS-13 SCSO experience were deemed non-competitively eligible and referred for interviews. Selectee was selected from the non-competitive referral list. The record includes an applicant rating sheet indicating there were a total of 57 applicants, of whom 19 were competitively eligible based on a score of 98 or higher. ROI at 412-14. Two applicants, including Selectee, earned scores of 96, but were deemed non-competitively eligible based on their prior experience as GS-13 SCSOs. Id. at 412 and 414. The 19 competitively eligible and 2 non- competitively eligible candidates were referred to the hiring official for consideration. ROI at 413 and 446-47. 5 2021004036 Regarding claim 2, Consistent with applicable Agency procedures, after Supervisor received Complainant’s transfer request memo, he reviewed it and sent the memo to Branch Chief. ROI at 164. Branch Chief submitted the memo to a Deputy Associate Director (Deputy Director 2). ROI at 151. Included in the record is an email trail and the Agency’s “Step by Step Reassignment Reference Guide - Organizational Moves, and Details” that confirm these statements. See ROI at 236-37 and 493-96. Regarding claim 3, with the assistance of the Administrative Assistant, Supervisor assigned cases to the CSOs on Complainant’s team. ROI at 166. Administrative Assistant assigned cases daily based on an alphabetical order rotation and she assigned cases to Complainant as she did for other CSOs. ROI at 207-08. Included in the record are supporting statements by Branch Chief that for the year 2020, Complainant and four other CSOs received 31 new cases, two other CSOs received 30 cases, and one CSO was on special detail, and did not receive any new case assignments. Branch Chief also noted that Complainant’s caseload could be reduced as she had eight cases that could be transferred out. ROI at 153. Complainant did not dispute these statements. Regarding claim 4, consistent with applicable Agency policy, Supervisor charged Complainant with AWOL on the dates at issue because Complainant did not show up for her required office coverage assignment. Complainant was authorized to telework except for one day a month for office coverage. According to Supervisor, he provided Complainant with the schedule, but she provided no “excusable” response when Supervisor requested her status on those dates. ROI at 168-73. Regarding claim 5, in accordance with criteria in the Agency’s Performance Management policy, Supervisor selected five cases from Complainant’s caseload to audit monthly and awarded her ratings accordingly. See ROI at 156-57 Branch Chief confirmed that Supervisor is required to review at least five cases per month from each CSO’s caseload and explaining the process for doing so. ROI at 173-74. Complainant received many “no’s” on the audit forms which asked if Complainant had completed certain tasks. ROI at 327. Regarding claim 6, Supervisor informed Complainant that her request was denied because such requests “must be preapproved.” ROI at 177. HR Specialist stated that overtime and compensatory time must be requested and approved prior to working the overtime or compensatory time hours. ROI at 217-18. Regarding claim 7, Supervisor issued Complainant the Proposed Five-Day Suspension (Notice) for repeated Failure to Follow Supervisory Instructions despite being ordered to do so; and AWOL for failing to report for her duty day on July 28, 2020, as directed. The Notice listed seven specifications on which the Failure to Follow Supervisory Instruction charge was based and one specification for the AWOL charge. ROI at 227-34. Included in the record is a summary detailing the charges and specifications. The Notice provides that Complainant’s behavior, as detailed in the specifications displayed a pattern of blatant disregard for supervisory authority and lack of appreciation for her responsibility as a CSO. ROI at 227-32. 6 2021004036 Deciding Official sustained the charges and the proposed suspension and ordered Complainant to serve the penalty based on the preponderance of evidence. ROI at 549. See also ROI at 543-50. Regarding claim 8, as supervisors routinely did for CSOs, Supervisor made revisions and suggested changes to Complainant’s AVRs including adding headings. Supervisor’s edits and recommendations did not impact Complainant’s final work product and/or the assessment of her work performance. ROI at 181. See ROI at 160. Finding that the Agency has met its burden, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Upon review, Complainant argued that the alleged actions were based on her protected bases. However, she presented no evidence to show that any of the alleged actions were motivated by any of those bases or that the stated legitimate non-discriminatory reasons are pretextual. Regarding claim 1, Complainant contended that Branch Chief decided not to grant her an interview. ROI at 109-10. However, Branch Chief led the Interview Panel, but he was unaware Complainant had applied for the position until he was notified of her EEO filing in the instant case. ROI at 148. Moreover, the HR Specialist, not Branch Chief, determined that the competitively eligible applicants had to score at least 98 to be referred to the panel for an interview. Complainant scored 93, and she was not referred for an interview. Selectee and the other non- competitively eligible applicant who, like Complainant, scored less than 98 were also not included on the competitively eligible applicants’ referral list. Complainant cites to her qualifications and years of experience as basis for her belief that discrimination occurred, contending that she is “highly qualified based on merit.” ROI at 111-12. However, 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. See, e.g., Dominica V. v. Dep't of Agric., EEOC Appeal No. 0120182366 (Oct. 31, 2019). Likewise, regarding claims 2-8, we find that Complainant has failed to show pretext. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (stating that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record). We find no such evidence here. Therefore, we find that Complainant has not shown by preponderant evidence that she was subjected to disparate treatment due to her protected bases. Hostile Work Environment To establish a claim of harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 7 2021004036 The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To ultimately prevail in a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). To the extent that Complainant is alleging that the Agency subjected her to unlawful harassment, we conclude that a case of harassment is precluded based on our finding above that Complainant did not establish that any of the actions taken by the Agency were motivated by any of her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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). 8 2021004036 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). 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. 9 2021004036 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 9, 2022 Date Copy with citationCopy as parenthetical citation