U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charley L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2022002049 Agency No. HS-FEMA-01109-2020 DECISION On March 7, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 1, 2021 final decision concerning his 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.2 BACKGROUND At the time of events giving rise to this complaint, Complainant had previously been employed by the Agency as a Program Analyst and a GS-0089-13 Emergency Management Specialist for the Response Planning Branch in Chicago, Illinois. On September 27, 2019, the Agency posted Vacancy Announcement No. FEMA-19-KN-323862-MP with two vacancies for the position of Emergency Management Specialist in Chicago, Illinois. 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 The Agency argues the instant appeal was untimely filed and should be dismissed. A review of the record reveals that the Agency misspelled Complainant’s email address when serving Complainant with the Agency’s November 1, 2021 final decision. Additionally, Complainant states in his appeal that he received the final decision on February 7, 2022. Therefore, based on the circumstances present, the Commission finds Complainant’s appeal was timely filed. 2022002049 2 Complainant submitted his application for the position and was interviewed for the position on October 30, 2019. On January 28, 2020, Complainant was notified that he was not selected for the position. The Agency filled one of the vacancies through the competitive process and the other vacancy was filled through an internal reassignment. Complainant also applied under Vacancy Announcement No. FEMA-21-EAR-399398-MP for the position of Emergency Management Specialist posted on October 28, 2020. Complainant was interviewed on December 10, 2020. However, on December 17, 2020, Complainant was notified that he was not selected for the position. On December 31, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 1. On January 28, 2020, Complainant was notified that he was not selected for an Emergency Management Specialist position, advertised under vacancy announcement number FEMA-19-KN-323862-MP; and 2. On December 17, 2020, Complainant was notified that he was not selected for an Emergency Management Specialist position under vacancy announcement number FEMA-21-EAR-399398-MP. Regarding Claim 1, Complainant was interviewed by a three-person panel, comprised of the now retired Division Director (Division Director); Complainant’s previous supervisor, the Operations Planning Branch Chief who was the Selecting Official (SO1); and the Regional Watch Center Branch Chief. SO1 explained that the interview questions were developed from a standard list of Agency questions and tweaked for the specific GS-12 position, which he stated was a developmental position. Therefore, the questions had less to do with the process of planning and were more geared toward interacting with others. The interview panel asked each applicant the same questions. The panel members individually scored each response on a numerical scale from one to five. SO1 tallied each applicant’s total score from the panel. SO1 ranked the applicants based on their interview cumulative scores and the highest ranked applicant was selected for the position (Selectee 1). SO1 stated Selectee 1 performed better overall than Complainant, which was reflected with her score of 111. Complainant was ranked fourth out of the six candidates interviewed with a score of 96. SO1 stated he was surprised at Complainant’s performance during the interview because he had experience and skills that were better than most candidates going into the interview. All applicants were asked during the interview to describe a time where they cost the Agency time and money. Complainant affirmed that he mentioned his prior EEO activity in 2016 in response to the question and that the question was directed at him regarding his prior EEO activity in 2016. SO1 and the Regional Watch Center Branch Chief both stated Complainant’s score was not affected by his prior EEO activity. Complainant believed he was more qualified than Selectee 1 because he had more years of experience. 2022002049 3 The Division Director made the decision to reassign a current employee (Selectee 2) into the second vacancy. Complainant claimed that Selectee 2 was reassigned because he had filed an EEO complaint against the Regional Watch Center Branch Chief. Regarding Claim 2, Complainant was interviewed by a five-person interview panel including the Selecting Official, who was the Chief, Regional Integration Branch (SO2). Six applicants were interviewed, including Complainant. All applicants were asked the same nine questions. SO2 stated this Emergency Management Specialist position was for an exercise/planning position. Panel members individually scored each response on a numerical scale from one to five. The score sheets for each applicant were tallied to create a cumulative score. SO2 also computed each applicant’s average points awarded. SO2 ranked the applicants according to their scores and the selection was based on the highest score. After the highest ranked applicant declined the position, the applicant with the second-highest score was selected for the position (Selectee 3). Complainant was ranked fourth out of the six applicants. Panel members explained that Selectee 3’s responses during the interview were specific and detailed. For example, Selectee 3 articulated the role of exercise and the exercise process thoroughly while Complainant failed to provide details showing his experience or knowledge of exercise activity. Selectee 3’s responses were specific about the skills necessary to be a good training manager, which Complainant failed to relate any responses to training or exercise. Panel members explained that Complainant’s responses were not thorough and failed to address all parts of a question. SO2 stated Complainant failed to provide good examples of training and management skills and failed to mention diversity in any of his responses. SO2 said Complainant had little knowledge regarding Presidential Policy Directive 8, National Preparedness, and one panel member claimed Complainant attempted to Google the answer. Two panel members stated Complainant’s responses discussed his previous experience at the Agency or his current position, however, he was unable to translate that experience into the position being filled. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the facts and record show that he was subjected to reprisal. Complainant contends that the interview scores were falsified and that his career was destroyed because of Agency officials with no integrity. Complainant believes that he is banned from re- hire with the Agency and that his qualifications are plainly superior to the selectees. Accordingly, Complainant requests that the Commission reverse the final decision. 2022002049 4 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 lawâ€). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of reprisal, the Commission finds, as described more fully above, the Agency articulated legitimate, non-retaliatory reasons for its actions. In both Claims 1 and 2, Complainant received a lower score because his responses during the interviews were not as thorough as Selectee 1 and Selectee 3. In both interviews, Complainant failed to fully demonstrate how his relevant experience and skills translated to the responsibilities of the positions being filled. Complainant was not selected because he was ranked lower than Selectee 1 and Selectee 3. Regarding Claim 1, the Agency did not select one of the remaining applicants to fill the second vacancy announced. Instead, the Agency chose to fill the position by reassigning an existing employee. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2022002049 5 Aside from Complainant’s conclusory allegations that he was not selected because of his prior protected EEO activity, Complainant has failed to establish that his nonselection was pretext for retaliatory animus. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Agency, as the employer, has broad discretion to carry out personnel decisions, absent evidence of unlawful motivation. Laurice S. v. Soc. Sec. Admin., EEOC Appeal No. 0120180646 (June 21, 2019). While Complainant notes that he had more overall years of experience than the Selectee 1, the Commission has previously held that greater years of experience do not necessarily make an individual more qualified for a particular position. Complainant has presented no evidence that the Agency's reasons were pretextual. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's prior EEO activity was a factor in any of the Agency’s actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to reprisal as alleged. CONCLUSION After a review of the record in its entirety and contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2022002049 6 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). 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. 2022002049 7 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 January 31, 2023 Date
