U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anette B,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022000867 Hearing No. 480-2021-00434X; 480-2021-00435X Agency No. HS-CIS-23437-2015 DECISION On December 3, 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 November 3, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a CIS Assistant (OA), GS-1802-07, at the Agency’s Los Angeles Asylum Office in Anaheim, California. Report of Investigation (ROI 1), dated December 30, 2015, at 92. Complainant was born in Vietnam and is of Chinese ancestry. Supplemental ROI (SROI), dated May 10, 2018, at 43. 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 2022000867 On March 11, 2015, the Agency posted a vacancy for the position of Immigration Analyst, CIS- 1333791-ASY (position 1). ROI 1 at 73-9. On September 8, 2015, the Agency posted a second vacancy announcement for the position of Immigration Analyst, CIS-1495193-ASY (position 2). SROI at 140. The Agency posted a vacancy announcement for Immigration Analyst, CIS-186901- ZLA (position 3). Complainant applied for all three positions. ROI 1 at 127 and SROI at 46. There were two interviewing officials for position 1. One of those officials was a recommending official (Recommending Official 1). The other interviewing official was Complainant’s third-line supervisor at the time, the Deputy Director. She was the selecting official (Selecting Official) for the position. ROI 1 at 228. Four applicants were selected for position1: Selectee 1 (Hispanic); Selectee 2 (Caucasian); Selectee 3 (Caucasian); and Selectee 4 (Asian). SROI at 55. Complainant was not interviewed for position 1. According to Selecting Official, consistent with office practice, only applicants with a rating of “Achieved Excellence” were considered. ROI 1 at 228. Prior to her application for the position, Complainant was rated “Exceeds Expectations,” which was below “Achieved Excellence.” ROI 1 at 316-18. Selecting Official stated that because Complainant did not receive the top rating of “Achieved Excellence” for the prior fiscal year (FY 2014), she was not interviewed for position 1. ROI 1 at 228. Selectee 1 (Asian) There were two interviewing officials for position 2. One of those officials was a second recommending official, the Acting Supervisory Chief of Staff (Recommending Official 2). SROI at 50. The other interviewing official was the Selecting Official. SROI at 73. The Los Angeles Asylum Office did not use ranking or scoring to assess applicants. Complainant was interviewed for the position. SROI at 63. Instead, when applicants reached the interview phase of the selection process, the factors that inform whether the applicant would be recommended for selection and selected were the candidate’s interview performance and the strength of the applicant’s references. SROI at 64. Recommending Official 2 did not recommend Complainant to Selecting Official because Complainant’s interview responses “were quite brief and lacked detail.” According to Recommending Official 2, Complainant provided fewer specifics in comparison to the selectee and others who were interviewed and did not expound upon her work or how she had demonstrated the attributes discussed. SROI at 64. According to Recommending Official 2, the other applicant for the position “provided detailed responses to the questions in the interview and had excellent references.” SROI at 65. That applicant (Selectee 5 (Hispanic) was selected for position 2. SROI at 63 and 67. There were also two interviewing officials for position 3 (Recommending Officials 3 and 4). ROI 2 at 109. Selecting Official was the selecting official for position 3. 2nd Report of Investigation (ROI 2), dated November 8, 2017, at 122. Complainant was interviewed for this position. ROI 2 at 79. 3 2022000867 Recommending Officials 3 and 4 did not recommend that Complainant be selected for position 3. ROI 2 at 91. Recommending Official 3 did not recommend Complainant for selection because Complainant’s “interview went poorly.” ROI 2 at 110-11. According to Recommending Official 3, Complainant’s “responses were not completely responsive to the questions at times. Her examples were weak and broad and general, instead of specific and concrete. They did not demonstrate a high level of skill in the areas questioned. She also was not articulate in her responses. Her answers did not demonstrate the qualities we were looking for.” ROI 2 at 111. Three other applicants were interviewed for position 3. According to Recommending Official 3, those applicants had much more successful interviews than Complainant. ROI 2 at 111-12. All three of those applicants, Selectee 6 (Vietnamese/Asian), Selectee 7, (Hispanic), and Selectee 8 (race unknown) were selected for position 3. ROI 2 at 80. Selectee 9, Caucasian applicant, was hired as a non-competitive applicant and, as such, was not selected from the vacancy announcement for position 3. ROI 2 at 321. After being informed of her non-selection, Complainant approached Recommending Official 3 and asked why she was not selected. According to Recommending Official 3, she told Complainant that she was not recommended for selection because her “interview was not the strongest and people interviewed better than her. Recommending Official 3 told Complainant that her responses were not elaborate or provided a lot of examples.” ROI 2 at 93. Recommending Official 1 first became aware of Complainant’s prior EEO activity in mid-2017, when she was asked to gather documents responsive to an EEO investigator’s inquiries. ROI 2 at 104. Recommending Officials 2, 3, and 4 were unaware of Complainant’s prior EEO activity at the time they interviewed her for positions 2 and 3. SROI at 60 and ROI 2 at 89. Selecting Official learned of Complainant’s prior EEO activity in March 2015, when she was notified that Complainant was pursuing mediation for an EEO complaint. ROI 1 at 235. Six months later, on August 2, 2017, Complainant again applied for the position of Immigration Analyst, and she was selected. SROI at 56 and 81. At Complainant’s work location, it was customary to have colleagues assist when a CIS Assistant was not available. ROI 1 at 159 and 200. There were 17 CIS Assistants, including Complainant, working at the Los Angeles Asylum Office in 2017. SROI at 281. If just one of the seventeen CIS Assistants called out sick, approximately 8 hours of coverage had to be performed. Spread out equally over 15 CIS assistants, each CIS Assistant provided approximately 32 minutes of coverage for just one CIS Assistant absence. This 32-minute estimate excludes the need for any additional coverages such as coverage for a second or third CIS Assistant calling out sick, coverage for the lunch breaks of CIS Assistants, coverage for CIS Assistants who arrive late or leave early, etc. Of the 17 CIS Assistants at Complainant’s work location, six (35 percent of the total) were Asian. The next largest group were Caucasian, which also had six persons. SROI at 281. 4 2022000867 Of the 12 Immigration Analysts, the position to which Complainant was previously not selected, three were Asian (or 25% of the total). The next largest group was Caucasian, which also had three persons. SROI at 281-83. Complainant asserted that between 2011 and 2017, her supervisors engaged in unwelcome conduct. These were eight different supervisors of different sexes and races, five of who were Complainant’s first-line supervisors. For example, according to Complainant, on August 29, 2014 she had no problem working on her assignments but she needed reasonable time to complete her tasks instead of covering other coworkers’ assignments and losing her work hours to work on her own assignments. Complainant asserted that she explained this to her then supervisor; however the supervisor did not listen to Complainant and insisted that she needed more training, even after the supervisor had observed Complainant’s work performance and felt that Complainant was doing good work. Complainant stated that on January 22, 2015, she was intimidated by being brought into a private meeting with two of her supervisors. According to Complainant, they proceeded to belittle her by falsely accusing her of having an attitude problem and a time management problem. Complainant asserted that she was not aware of any other coworkers who were treated in that manner. ROI 1 at 137. Complainant initiated EEO contact on March 4, 2015, and March 30, 2017. On May 8, 2015, and May 26, 2017, Complainant filed two separate EEO complaints (with subsequent amendments on September 16, 2015, and November 20, 2015) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Chinese) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. EEOC No. 480-2021-0043X, formerly 480-2016-00473X (Agency Case No. HS-CIS-23437-2015 [First Case]), whether Complainant was subject to discrimination based on her race (Chinese) and reprisal when the following alleged incidents occurred: 1. From September 26, 2013, through January 23, 2015, Complainant was subjected to harassment amounting to a hostile work environment. Some events that were provided as examples to support this claim include when management: had Complainant cover co- worker's assignments and still expected Complainant to complete assignments on deadline; moved up Complainant's deadlines with little notice; told Complainant that she needed more training and needed to log her work daily when Complainant tried to discuss her workload; gave Complainant a mid-cycle review where it was referenced that she did not complete her assignments on time; falsely accused Complainant of talking on her phone and texting while at work; gave Complainant a "B" rating on her fiscal year·2014 Performance Plan and Appraisal; and accused Complainant of having time management issues and an attitude. 5 2022000867 2. On July 27, 2015, Complainant learned that she was not selected for the position of Immigration Analyst (Asylum) at the Los Angeles Asylum Office, advertised under vacancy announcement CIS-1333791-ASY. EEOC No. 480-2021-00435X, formerly 480-2018-00139X (Agency No. HS-CIS-01442-2017 [Second Case]), whether Complainant was subject to discrimination on the bases of race (Chinese) and reprisal (prior EEO activity) when: 1. On February 16, 2017, she learned that she was not selected for the Immigration Analyst position at the Los Angeles Asylum Office advertised under vacancy announcement CIS- 186190 1-ZLA. 2. On or about January 4, 2016, Complainant learned that she was not selected for the position of Immigration Analyst (asylum), GS-0901-07/09, vacancy announcement CIS-1333791- ASY. The Agency conducted investigations into the two complaints. 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. Both complaints were consolidated. The parties participated in discovery. The two complaints were dismissed without prejudice. The Agency was ordered to conduct a supplemental investigation due to Complainant’s February 16, 2016, request to amend her first case. The supplemental investigation was conducted, and the Agency submitted the Supplemental Report of Investigation (SROI). The complaints were reopened at Complainant’s request. On July 1, 2021, the agency filed a Motion for Decision Without a Hearing (Agency’s motion). On July 15, 2021, Complainant filed a response in opposition (Complainant’s opposition). The Agency filed a reply. After a review of the submissions and the evidence in the case file, the AJ assigned to the case observed that the record had been adequately developed for summary disposition. The AJ determined that a decision without a hearing was appropriate pursuant to 29 C.F.R. §1614.109(g). The AJ issued a decision without a hearing in favor of the Agency on September 30, 2021. According to the AJ, the Agency's motion and reply properly addressed the issues, and established that there were no genuine issues regarding any material facts. The AJ stated that the record was devoid of evidence demonstrating that similarly situated employees outside of Complainant’s protected classes were treated more favorably and/or that the Agency’s articulated legitimate, nondiscriminatory reasons for the alleged discrimination were unworthy of credence. The AJ stated that the evidence also did not establish a genuine issue of material fact that the alleged harassment occurred due to Complainant’s race or EEO activity. 6 2022000867 For the hostile work environment claim in the First Case, the AJ stated that the parties agreed that the following issues were discrete and untimely events that were considered solely for a totality of the circumstances analysis of a hostile work environment: management gave Complainant a mid- cycle review where it was referenced that she did not complete her assignments on time; falsely accused Complainant of talking on her phone and texting while at work; and gave Complainant a "B" rating on her fiscal year 2014 Performance Plan and Appraisal. The AJ observed that the parties did not dispute that Complainant was born in Vietnam and is of Chinese ancestry. According to the AJ, while they may dispute the causal connection between Complainant’s protected activity and her alleged reprisal claim, the parties also did not dispute that Complainant engaged in protected activity. Therefore, the AJ asserted, she is protected against disparate treatment and harassment based on race and in reprisal for prior EEO activity. However, the AJ found that Complainant and the record did not support a prima facie reprisal claim as to her three non-selection claims. According to the AJ, Complainant was not selected for the Immigration Analyst (Asylum position) on or about July 27, 2015 because all applicants, irrespective of protected bases or prior EEO activity, who did not receive an “Achieved Excellence” rating in their latest performance evaluation did not advance to an interview. As to Complainant’s non-selections on January 4, 2016 and February 16, 2017, the AJ found that the temporal scope between the non-selections’ date and Complainant’s March 5, 2015 EEO contact was too attenuated to establish a causal connection between the protected activity and the adverse employment action of non-selection. The AJ also noted that the record did not include evidence establishing a genuine issue of material fact that Selecting Official was aware of the prior EEO activity during the January 4, 2016 non-selection. According to the AJ, the same was true for the lack of EEO activity notice of recommending officials when they did not include Complainant in their recommendations for selection related to the February 16, 2017 non-selection claim. Without prior notice, asserted the AJ, there was no causal nexus between the protected activity and the adverse employment actions of non-selection, barring a prima facie reprisal claim. The AJ found that the record also did not support a prima facie disparate treatment race-based claim as to the non-selections. Again, observed the AJ, for the July 27, 2015, non-selection, Complainant did not advance in the selection process because she and all applicants who did not receive an Achieved Excellence performance rating were eliminated. The AJ stated that whether said performance ratings were impacted by alleged discrimination did not change information available to selecting officials at the time of their consideration of applicants. According to the AJ, the recommending officials’ decision based on incorrect or performance ratings that were based on alleged discrimination not then known to recommending officials would be insufficient to establish discrimination. 7 2022000867 The AJ observed that rather than presenting a genuine issue of material fact that the Agency’s actions were based on Complainant’s race, or that the Agency’s legitimate business reasons for only selecting candidates with an Achieved Excellence performance rating were unworthy of credence or a pretext for discrimination, the record supports the Agency’s efforts to carry out its personnel decisions and exercise managerial discretion in applicant considerations irrespective of protected bases. According to the AJ, similarly exercising its hiring discretion in the remaining two non-selections, the Agency determined that all applicants would be heavily evaluated per their interview responses and recommendations. The AJ determined that the record did not evince a genuine issue of material fact that Complainant’s consideration was different, demonstrating an absence of similarly situated applicants of other races being treated more favorably or that that the Agency’s articulated hiring criteria were unworthy of credence or a pretext for discrimination, barring a genuine issue of material facts in support of a prima facie disparate treatment claim. As to Complainant’s hostile work environment claim, the AJ stated that the Agency’s motion and reply compellingly demonstrated that Complainant’s hostile work environment claim was untimely, warranting summary judgment. According to the AJ, even if the hostile work environment claim were timely, however, the alleged incidents of harassment did not present severe forms of harassment. Yet, asserted the AJ, for purposes of summary judgment alone, despite their gaps in time and variance in alleged harassers, the various incidents of harassment were deemed sufficiently pervasive to support a hostile work environment claim. Barring a prima facie hostile work claim, however, stated the AJ, was the absence of a genuine issue of material fact that the alleged harassment was motivated by race and/or Complainant’s prior EEO activity. Instead, observed the AJ, as meticulously outlined in the Agency’s motion and reply, the alleged harassment presented day to day incidents of workplace unpleasantries and disputes between employees and supervisors that involved either Complainant’s work assignments or her performance ratings. Yet, the record was devoid of evidence supporting a genuine issue of material fact supporting a race and/or reprisal related intent. The AJ noted that as outlined in Complainant’s response to summary judgment, the circumstances in this case were clearly unpleasant to Complainant. Even so, the AJ found that employment discrimination laws enforced by the Commission are not to be used as a "general civility code.” However, asserted the AJ, objectionable to a Complainant, conduct that amounts to “petty slights and trivial annoyances” or that otherwise are part of the everyday inconvenience of the workplace are not enough to establish a hostile work environment. According to the AJ, the alleged discrimination involves routine managerial supervision, personality conflicts and general workplace disputes and tribulations instead of harassment that was so objectively offensive as to alter the conditions of Complainant’s workplace. The AJ found that Complainant and the record did not demonstrate genuine issues of material fact that the harassment was anything other than unpleasant work-related policies, assignments and performance evaluations unrelated to Complainant’s race and/or EEO activity. 8 2022000867 The AJ held that the record contained insufficient evidence to establish a genuine issue of material fact as to the ultimate question of discriminatory intent. Thus, the evidence did not present a genuine issue of material fact in support of a prima facie case of race based disparate treatment, reprisal, or hostile work environment. 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. This appeal followed. CONTENTIONS ON APPEAL In her appeal brief, among other things, Complainant contests the AJ decision, reiterating her allegations. Through counsel, Complainant argues that she established a prima facie case of discrimination for her three non-selections. According to Complainant, only one selectee was Asian for position 1; and only one of the selectees was Asian for position 3. Complainant asserts that for position 2, not only was the selectee not Asian, she was also not as qualified for the position as Complainant. Complainant argues that Selectee 5 was a federal contractor at the time of her application, and did not meet the time-in-grade requirements. Complainant also argues that she established a prima facie case of hostile work environment discrimination. According to Complainant, the Agency's contention that she had not demonstrated that she was subjected to a hostile work environment because she could not show that the conduct rose to the level of being severe or pervasive fails. Regarding Complainant’s allegations that her supervisors would repeatedly have her cover coworker's assignments and still expected her to complete assignments on deadline, Complainant argues that the Agency incorrectly "averages" the amount of time that Complainant spent on other coworker's assignments by creating an average based upon the entire time she was employed with the Agency. Complainant alleges that the Agency falsely stated that she spent an average of minutes covering coworkers' assignments when in reality, between September 1, 2014, and May 7, 2015, Complainant spent a total of 47.25 hours on 16 separate occasions, which equates to, on average, 2.95 hours spent per occasion covering another coworker's assignment. Complainant also asserts that between March 22, 2012, and January 8, 2016, she provided a total of 370.5 hours of coverage over approximately 132 occasions, which equates to, on average, 2.81 hours spent per occasion covering other coworker's assignments. According to Complainant, this amount of time is significant considering that a General Schedule employee for the Agency is expected to work 8 hours per day, especially given that she was subjected to this for over 3 years with the Agency. Complainant states that she was required to spend over 2.5 hours on average on over 100 occasions to cover for her coworkers, while still being expected to complete her own assignments in a timely fashion. Therefore, Complainant argues, she has demonstrated that the conduct was objectively severe and pervasive. 9 2022000867 Complainant states that she established a prima facie case of retaliation, asserting that the Agency's contention that it was not aware of her prior EEO activity with regard to the non-selections fails. According to Complainant, Selecting Official was aware of her prior EEO activity, as she was aware of the informal EEO complaints and formal EEO complaints in both cases. Therefore, Complainant states, the Agency's contention that they were unaware of her prior EEO activity fails. Complainant argues that the Agency’s explanations for her non-selections were pretextual, asserting that the Agency's contention that she was not qualified because she had a rating lower than "5" on her Fiscal Year 2014 performance appraisal fails. According to Complainant, she was qualified for the vacancy announcement for position 1 because she possessed almost two years of experience for the duties set forth in the vacancy announcement description. She states that one is considered qualified for a position if they possess the experience necessary to carry out the essential functions of the position. According to Complainant, the non-selection for position 1 (and the two other non-selections) was in reprisal, including for her refusal to sign her 2014 performance appraisal, and for her filing an EEO complaint in March 2015. The non-selection for position 1 occurred in July 2015. Citing to ROI 1 at 103-04, Complainant asserts that her 2014 Fiscal Year appraisal was issued on October 30, 2014, by a rating official who only supervised Complainant for a period of 2 weeks. Complainant states that she refused to sign the performance appraisal because she disagreed with the rating official’s assessment of her performance. Complainant requests that the Commission overturn the AJ’s decision and the Agency’s final order. In response, among other things, the Agency expresses agreement with the AJ’s determination that a hearing was unwarranted. The Agency also asserts that Complainant failed to contest the Agency’s material facts, and was unable to offer evidence to support her claims of discrimination, retaliation, or harassment. According to the Agency, Complainant did not challenge a single one of the material facts relevant to the non-selection for the CIS-1333791-ASY position. The Agency argues that while it is true that Complainant may have been qualified for the position, what is also true (and is undisputed) is that the local office’s practice was to only consider applicants with the highest rating on their last rating of record. According to the Agency, Complainant failed to satisfy this requirement. That is why she was not interviewed nor selected. Moreover, argues the Agency, one of the four selectees, Selectee 1, was Asian. The Agency asserts that Complainant’s argument regarding the CIS-1495193-ASY position was immaterial. According to the Agency, it is undisputed that Recommending Official 1 was not aware of Complainant’s prior EEO activity when she did not recommend Complainant for selection. The Agency states that Complainant admitted at deposition that she had no evidence that Recommending Official 1 was aware of Complainant’s prior EEO activity. 10 2022000867 The Agency also asserts that Complainant’s argument regarding the CIS-186901-ZLA position was immaterial, noting that based on Complainant’s interview, Recommending Officials 2 and 3 (both Asian) did not recommend her for selection; and they were not aware of Complainant’s prior EEO activity. The Agency also notes that one of the four selectees for the position was Asian. The Agency argues that Complainant’s coverage of coworkers could not have amounted to harassment. According to the Agency, what Complainant did not mention is that (1) covering for coworkers was part of the duties of a CIS Assistant and (2) Complainant admitted that she “didn’t mind covering someone’s duties…” The Agency argues that it is uncontested that Complainant only provided coverage an average of once every 7.2 workdays i.e., what is, once every one and one-half weeks. Averaged out over all workdays, according to the Agency, Complainant’s coverage came to just 23.5 minutes of coverage, hardly the onerous amount of coverage she alleged. The Agency asserts that if just one of the seventeen CIS Assistants called out sick, approximately 8 hours of coverage had to be provided. According to the Agency, spread out equally over the remaining 16 CIS assistants, each CIS Assistant would provide approximately 30 minutes of coverage for just one CIS Assistant absence. These 30-minutes, explains the Agency, excluded any additional coverage, for example, for a second or third CIS Assistant who calls out sick, or daily coverage for the lunch and rest breaks, or coverage for CIS Assistants who arrive late or leave early. According to the Agency, a look at lunch-time coverage shows that Complainant’s amount of coverage was, if anything, subpar. The Agency adds that coverage for one 30-minute rest break for 17 CIS Assistants came to a total of 510 minutes (30 minutes x 16 CIS Assistants). Dividing this amount of coverage for lunch break evenly among the remaining 16 CIS Assistants came to 31.9 minutes of coverage by each CIS Assistant. The Agency states that Complainant’s actual average of 23.5 minutes fell below what would be expected on a daily basis simply for lunch breaks and certainly could not be characterized as severe or pervasive. The Agency requests that the Commission affirm the AJ’s decision and the Agency’s final order. STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See Id. at Chapter 9, § VI.A. (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, 11 2022000867 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”). ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing 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 nonmoving 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). 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. Disparate Treatment Based on Race and Reprisal 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). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he or she must first establish a prima facie (at first sight) 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). 12 2022000867 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). Non-Selections - First Case (Claim 2) To prove a prima facie case of discrimination regarding a non-selection, a complainant must show that: (1) s/he is a member of a protected group; (2) the agency solicited applications for vacancies for the position at issue; (3) s/he applied for the vacancy and was qualified; (4) despite complainant’s qualifications, applicant(s) outside his/her protected group were instead selected. Cain v. Dep’t of the Army, EEOC Appeal No. 0120072018 (Jul. 10, 2007). Here, Selecting Official stated that Complainant was not interviewed for position 1 because only applicants who had received a rating of “Achieved Excellence” were considered. See ROI 1 at 316-23 for Complainant’s FY 2014 performance appraisal showing that she received an overall rating of “Exceeds Expectations.” Second Case (Claims 1 and 2) For positions 2 and 3, Recommending Officials 2 and 3 asserted that Complainant was not recommended for selection because her interview responses were not as detailed as those of the selectees. For position 2, the record includes the interview notes for Selectee 5’s interview responses which were more substantive, direct, and included more detailed descriptions of her diverse work experiences than was shown in Complainant’s responses. SROI at 236-38. One of the interview questions was “Why are you interested in the IA position?” In response, Selectee 5 discussed in depth her current experience and explaining that she was seeking to gain further knowledge and have more face-time with applicants. SROI at 236. In response to the same question, Complainant simply responded, “I want to learn new skills and challenge myself.” Complainant’s responses to the other interview questions also lacked detail. SROI at 83-4. Also included in the record are the interview notes for Complainant’s interview for position 3 which show that Complainant’s responses lacked detail. ROI 2 at 306-309. The record contains interview notes for three other applicants showing that they provided more in- depth responses with substantive explanations. ROI 2 at 292-95, 299-302, and 315-18. 13 2022000867 The Agency has articulated a legitimate non-discriminatory reason for its action. We next turn to Complainant to show pretext. Complainant argued that the Agency’s explanations were pretextual, asserting that her non- selections were based on her race and prior EEO activity. However, Complainant did not refute management’s explanations with any corroborating evidence. Nor did she show that applicants who did not receive a rating of “Achieved Excellence” were interviewed for position 1. Besides, for position 1, Selectee 4, like Complainant, is Asian. For position 3, Selectee 6 is also Asian. Complainant argued that she was more qualified than Selectee 5 for position 2, asserting that Selectee 5 was a federal contractor at the time of her application, and did not meet the time-in- grade requirements. However, management stated that Selectee 5 also met the time-in-grade requirement for the position as she has worked at the Agency since October 2011. See SROI at 66- 7 and 80 for statements provided by Recommending Official 2 and Selecting Official. (See also SROI at 274-76 for Selectee 5’s resume that supports management’s statements that she was indeed qualified for the position). EEOC case law is replete with cases supporting the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates were selected. See e.g., Judson v. Dep't of Veterans Affs., EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext of discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Doc. 0120082612 (July 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affs., EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). Regarding reprisal, Complainant argued that her non-selection for position 1 was because she refused to sign her performance appraisal for FY 2014. She stated that the rating official for the FY 2014 performance period was her supervisor only for two weeks. However, Complainant presents no evidence to show that the rating official was not privy to her performance records prior to the rating. Nor does Complainant demonstrate that her refusal to sign that performance rating played a role in her non-selection for position 1. Moreover, Complainant did not cite to any agency policy mandating that she sign her performance appraisal so that her refusal to do so would be bases for any personnel action or employment harm. As the AJ aptly noted, the temporal scope between Complainant’s non-selections on January 4, 2016, and February 16, 2017, were too attenuated from her March 5, 2015, EEO contact to establish a causal connection between the protected activity and the adverse employment actions. More importantly, however, Recommending Officials 2 and 3 were unaware of Complainant’s prior EEO activity; and the record is devoid of any evidence that being aware of Complainant’s prior EEO activity factored into decisions made by Recommending Official 1 and Selecting Official’s decisions regarding Complainant’s non-selections for positions 1, 2, and 3. 14 2022000867 Therefore, Complainant does not prevail because she did not show that she was not selected based on her protected bases. Hostile Work Environment - First Case (Claim 1) To merit a hearing on her claim of discriminatory or retaliatory harassment, Complainant must raise a genuine issue of material fact as to whether: (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 her statutorily protected classes; (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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The anti-discrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also raise a genuine issue of material fact as to whether the alleged management conduct was motivated by unlawful considerations of her protected bases. Indicators of such discriminatory or retaliatory animus typically include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory or retaliatory harassment be brought before an AJ for a hearing. Here, Complainant asserts that she established a prima facie case of hostile work environment, arguing that she has demonstrated that the alleged management conduct in having her cover her coworker's assignments was objectively severe and pervasive. Complainant also describes incidents involving performance feedback. These include management moving up Complainant's deadlines, telling Complainant that she needed more training and needed to log her work daily, and giving Complainant a mid-cycle review. 15 2022000867 Regarding these alleged management conduct, however, Complainant’s arguments fail because the Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We find that many of the allegations stated in Complainant’s complaint fall within these types of management prerogatives, and Complainant has not shown how she was treated differently than others who were similarly situated and outside of her protected classes. Notably, other CIS Assistants were required to cover coworkers’ assignment in their absence; and many of those coworkers were, like Complainant, Asian. We also note that the Commission has posited that for a hostile work environment claim to be actionable, the conduct must be more than merely offensive, it must exceed “casual comments, rude or derogatory remarks, and conduct motivated by personal animosity or personal feud” and the conduct must materially change the terms and conditions of employment and be more than an inconvenience or a change in job responsibility. Sealey v. Affiliated Computer Servs., Inc., No. 11-cv-489, 2012, W.D.N.Y. (Mar. 6, 2012). Here, while it may have felt offensive to Complainant that her supervisors, if true, falsely accused her of talking on her phone and texting while at work, and of having attitude and time management problems, these actions do not constitute actionable harassment. Taken together, the totality of the alleged management conduct as described by Complainant also lack the requisite severity or pervasiveness to sustain her hostile work environment claims. 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 subjected to discrimination, reprisal, or a hostile work environment by the Agency as alleged. Therefore, Complainant’s claims fail, and she is not entitled to her requested remedies. 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 adopting and fully implementing the AJ’s decision. 16 2022000867 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). 17 2022000867 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 March 21, 2023 Date
