[Redacted], Zoey N., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2022000420 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zoey N.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2022000420 Hearing Nos. 540-2019-00182X, 570-2021-00331X Agency Nos. DOI-NPS-18-0575, DOI-NPS-20-0413 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2021, final order concerning her equal employment opportunity (EEO) complaints 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. At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS- 1811-14, at the Agency’s Glen Canyon National Recreation Area in Page, Arizona. On October 10, 2018, and April 28, 2020, Complainant filed EEO complaints alleging that the Agency discriminated against her on the bases of sex (female), age (52), and in reprisal for prior protected EEO activity when: 1. on or about August 23, 2018, Complainant was notified she was not selected for the position of Southwest Field Office (SWFO) Assistant Special Agent in Charge (ASAC); 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. 2022000420 2 2. on or about August 23, 2018, Complainant was notified she was not selected for the position of Special Operations Group (SOG) ASAC; and 3. on April 22, 2020, Complainant was not selected for a 120-day detail assignment into the position of ASAC. Regarding Claims (1) and (2), the ASAC position is the supervisor for a specific area of responsibility that directly supervises special agents in that area. The ASAC oversees investigations and approves matters submitted by the special agents. There were 10 applicants for the position, including Complainant. The Selecting Official (SO) convened a resume panel to review and rank the applicants’ resumes based on a scoring matrix and then an interview panel. After conducting the interviews, the panel discussed the scores and determined the top four candidates unanimously. Ultimately, SO chose the selectee (Selectee 1) for the position at issue in Claim (1) as he had been stationed in the border area, was a Subject Matter Expert (SME) with regard to border criminal conduct, and had worked more complex investigations than Complainant with successful prosecution. SO chose the selectee (Selectee 2) for the position at issue in Claim (2) as he had previously acted in the position and he had had a background in covert operations, unlike Complainant. As to Claim (3), not-to-exceed 120-day temporary detail assignments generally are not advertised or competed. The existing ASAC of the Atlantic Field Office had been temporarily promoted, leaving the ASAC position temporarily vacant. All special agents in the Atlantic Field Office were considered for the 120-day temporary promotion to the ASAC position. Complainant was not considered for the Atlantic Field Office ASAC position because she was not a member of the Atlantic Field Office and did not live in the Eastern United States. The Supervisory Special Agent (SSA) was the approving official and selected the selectee (Selectee 3) who was qualified for the promotion. After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigation for each complaint and notice of her right to request hearings before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. The complaints were consolidated at the hearing stage. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 2022000420 3 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. (Aug. 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). In order 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 has failed to establish such a dispute. Agency officials articulated legitimate, nondiscriminatory reasons for Complainant’s non- selections for the positions at issue. Regarding Claims (1) and (2), both of the selectees were found to be more qualified and ranked higher by the panel than Complainant for the ASAC positions. Panelists explained that Selectee 1’s resume showed that he had more experience than Complainant, specifically that he had experience with “assisting management as it relates to law enforcement issues, specifically investigation matters as a subject matter expert,” leadership, experience with conducting investigations, particularly as it relates to “resolving case through teamwork and cooperation” and that he highlighted that he had worked well with other agents and agencies. Selectee 1 provided more detailed and in-depth interview responses and his answers demonstrated how his qualities and experiences would impact his ability to perform as an ASAC. Likewise, panelists explained that Selectee 2’s resume also was superior in that he showed he had “extensive experience planning and conducting [various] investigations,” that he was regarded as a subject matter expert on investigative issues, and that he had assisted other special agents and other federal, state, local police agencies. Selectee 2’s interview was also more detailed and complete as he provided comprehensive explanations and examples in his responses to the questions. By contrast, one panelist explained that Complainant’s resume was not focused, and her interview responses were vague and without specifics. As a result, SO ultimately selected Selectee 1 and Selectee 2 for the positions at issue. Finally, with respect to the detail assignment, SSA noted that when filling a 120-day temporary ASAC detail, management looks within the Field Office where the vacancy exists. All Special Agents in the Atlantic Field Office were considered and Selectee 3 was selected from the Atlantic Field Office. SSA affirmed that Complainant was not considered for the detail assignment because she was stationed in Arizona and is not a member of the Atlantic Field Office. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2022000420 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s 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. 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. 2022000420 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 February 21, 2023 Date