EEOC Appeal No. 0120151764
06-07-2017
Gena C. v. Dep't of Health & Human Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gena C.,1
Complainant,
v.
Thomas E. Price, MD.,
Secretary,
Department of Health and Human Services
(Administration for Children and Families),
Agency.
Appeal No. 0120151764
Agency No. HHS-ACF-0229-2014
DECISION
On April 21, 2015, Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 31, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission VACATES the Agency's final decision and REMANDS the matter for a supplemental investigation.
ISSUE PRESENTED
The issue presented is whether the record is sufficiently developed to determine whether Complainant was subjected to discrimination based on race, color, and/or age.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Child Care Program Specialist in the Agency's Office of Child Care (OCC), Technical Assistance Division (TAD) in Washington, D.C. Complainant's first-line supervisor was the TAD Director (S1), and her second-line supervisor was the OCC Director (S2). Complainant began working for the Agency as a GS-11 Child Care Program Specialist in May 2008. According to Complainant, prior to joining OCC, she had approximately 20 years of experience in child care, early care and education, and social service program management.
Complainant stated that in September 2008 she was assigned as the co-lead on the National Child Care Information Center (NCCIC) contract, working with a GS-14 coworker (C1). Complainant averred that she subsequently took over C1's NCICC Contracting Officer Representative (COR) responsibilities, but she was not compensated accordingly through the completion of the contract on November 30, 2012. S2 stated that C1 had other higher-level responsibilities besides serving as NCCIC COR and noted that most employees serving as a COR are graded lower than GS-14.
In May 2009, Complainant received a career ladder promotion to GS-12. Complainant averred that in February 2010, she met with S1 to discuss her role, responsibilities, and a possible increase in pay grade. According to Complainant, S1 said that she would see what she could do but that there were significant budgetary constraints. Complainant stated that she discussed the same issues with S2, who told her that she should be happy to have a job in light of the budgetary issues.
In 2009, a Presidential Management Fellow (P1) joined OCC. Complainant averred that after P1's one-year fellowship, TAD hired P1 as a Child Care Program Specialist. Complainant stated that P1 worked with C1 on the Conference Management Contract (CMC). In 2013, Complainant and P1 timely applied for a TAD GS-13 Management and Program Analyst position, vacancy announcement number HHS-ACF-MP-14-998334. A panel consisting of S1 and the Director of the Program Operations Division (S3) interviewed the top candidates, including Complainant and P1. On March 18, 2014, Complainant was notified that she was not selected for the vacancy. P1, who was approximately 30 years old at the time, was selected for the position.
According to S1, P1 did the best job succinctly responding to the interview questions with directly relevant examples reflecting the knowledge, skills, and abilities required for the position. S1 stated that P1 had a consistently high level of performance while working in OCC, whereas Complainant's work required more revisions than P1's work product. S1 also highlighted a grammatical error in Complainant's resume. S2 stated that she was the selecting official for the position and stated that she concurred with S1 and S3's consensus recommendation to promote P1. S2 noted that in fiscal year 2012, Complainant received a performance evaluation rating of 3.8, "Fully Successful," while P1 received a rating of 5.0, "Exceptional." According to S2, P1 is more proactive than Complainant, which is reflected in their performance evaluations. S2 averred that P1 was very independent and regularly took initiative.
Complainant averred that P1 had logistical experience but did not have experience with substantive subject matter or state policy issues. Complainant stated that she is just as, if not more, proactive than P1. Complainant noted that she received "Exceptional" ratings for several elements for her FY 2012 performance evaluation. Complainant alleged that she had applied for other OCC GS-13 positions in the past and had been passed over for younger White applicants. S2 stated that Complainant was not on the certificate of eligible for a TAD January 2010 vacancy. S2 noted that one of the two selectees for the January 2010 vacancy was a 41-year-old Black African-American female. According to S2, Complainant was not selected for a Policy Division summer 2010 vacancy because she did not have directly relevant policy analysis experience. The selectee was a 40-year-old Asian male.
On July 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and age (50) when:
1. Since 2008, management required her to perform the COR duties originally assigned to a GS-14 Senior Program Analyst without commensurate compensation and/or increase in GS level; and
2. Management passed her over for promotion opportunities/vacancies within the Policy Division and the TAD, including the position of Management and Program Analyst, GS-0101-13, for which a less qualified younger White female was selected.2
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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Concerning Complainant's nonselection for vacancy announcement number HHS-ACF-MP-14-998334, the Agency found that the legitimate, nondiscriminatory reasons for selecting P1 were P1's higher performance evaluations, P1's succinct answers to the questions posed during the interview, and P1's initiative and independence with respect to her work. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to provide legitimate, nondiscriminatory reasons for its actions. Complainant argues that the record is incomplete because it does not contain P1's performance evaluations. Complainant also notes that the record does not contain any contemporaneous interview notes or testimony from S3. Complainant further maintains that she established that the Agency's legitimate, nondiscriminatory reasons were pretextual. Complainant requests that the Commission issue a finding that she was subjected to discrimination.
In response to Complainant's appeal, the Agency contends that Complainant failed to establish that she was subjected to discrimination or that the Agency's legitimate, nondiscriminatory reasons were pretextual. The Agency requests that its final decision be affirmed and that the Commission sanction Complainant for misrepresenting the holding of Bollenbacher v. Dep't of the Navy, EEOC Appeal No. 0120113312 (Sep. 19, 2013) in her contentions on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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").
As a preliminary matter, we address the Agency's request that we sanction Complainant for misstating the holdings of Bollenbacher v. Dep't of the Navy, EEOC Appeal No. 0120113312 (Sep. 19, 2013). Although we find Complainant's incorrect citation to be unpersuasive, we decline to sanction Complainant for her attorney's error.
Complainant alleged that she was subjected to discrimination based on race, color, and age when she was not selected for a Management and Program Analyst position in 2014. To ultimately prevail, she must show that the Agency's legitimate, nondiscriminatory reasons for not selecting her were a pretext to mask unlawful discrimination.
EEOC Regulation 29 C.F.R. � 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110, at Chap. 6, � IV.B. An investigation must include "a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant's group as compared with the treatment of similarly situated employees . . . and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant." Id. at � IV.C. Also, an investigator must identify and obtain "all relevant evidence from all sources regardless of how it may affect the outcome." Id. at � VI.D.
EEOC Regulations provide that the Agency and any employee of a Federal agency shall produce such evidence as the investigator deems necessary. 29 C.F.R. 1614.108(c)(1). The regulations further provide that when the Agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to requests for . . . affidavits . . . the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal, may in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as it deems appropriate. 29 C.F.R. � 1614.108(c)(3).
Upon review, the Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the fact finder to address the ultimate issue of whether discrimination occurred. Specifically, we note that the record contains inadequate documentary evidence to allow us to determine whether the Agency's legitimate, nondiscriminatory reason is pretextual. While the Agency's burden of production is not onerous, it must provide a specific, clear, legitimate, and individualized explanation that provides an opportunity for Complainant to satisfy her ultimate burden of proof of pretext. Lorenzo v. Dep't of Defense, EEOC Request No. 05950931 (Nov. 6, 1997). We find that it has not done so here.
Agency officials testified that Complainant was not selected for the vacancy because her performance evaluation rating was lower than P1's and because her responses to the interview questions were not as good as P1's. However, the record does not contain P1's performance evaluation. The record also does not contain any contemporaneous interview notes or scoring sheets summarizing the interview panelists' impressions of the interviewed candidates. Also missing from the record is the testimony of the other interview panelist, S3. Further, the copy of P1's resume in the record is illegible. Therefore, Complainant does not have a full opportunity to demonstrate that the Agency's legitimate, nondiscriminatory reason is a pretext for discrimination.
Accordingly, we conclude that the present record lacks necessary information and REMAND this matter to the Agency to conduct a supplemental investigation.3
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter for further processing in accordance with this decision and the ORDER below.
ORDER
Within one hundred and twenty (120) days of the date this decision becomes final and consistent with this decision, the Agency shall conduct and complete a supplemental investigation which includes, but is not limited to, the following:
1. Affidavit or other declaration of S3 regarding interviews and the selection process for vacancy announcement number HHS-ACF-MP-14-998334. If the identified witness is no longer available, the Agency shall provide an explanation of that availability and obtain information from other Agency personnel who are able to provide relevant evidence.
2. P1's FY 2012 performance evaluation.
3. A legible copy of the resume submitted by P1 with her application for vacancy announcement number HHS-ACF-MP-14-998334.
4. All contemporaneous interview notes, scoring sheets, or other documents created during the selection process for announcement number HHS-ACF-MP-14-998334.
5. Opportunity afforded to Complainant to submit a rebuttal affidavit and documentary evidence to prove pretext.
6. Issuance of a new final decision with appropriate appeal rights, unless this matter is resolved before the issuance of a decision.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the supplemental report of investigation shall also be submitted to the Compliance Officer referenced below.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
6-17-2017
__________________
Date
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 This version of Complainant's claims, which is adopted from Complainant's contentions on appeal, more accurately reflects Complainant's allegations than the version accepted for investigation by the Agency.
3 Although the insufficiency of the record concerns claim 2, Complainant's nonselection for vacancy announcement number HHS-ACF-MP-14-998334, we decline to address claim 1 because the claims are interrelated and to avoid fragmenting Complainant's hostile work environment claim.
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