[Redacted], Lydia W., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jun 22, 2022

Appeal No. 2020002725 (E.E.O.C. Jun. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lydia W.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020002725 Agency No. HHS-OS-0041-2019 DECISION On March 11, 2020, 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 March 3, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency discriminated against Complainant on the basis of age when it did not select her for the position of Supervisory Health Scientist Administrator. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Scientist Administrator, GS-14, at the Agency’s Division of Investigative Oversight (DIO or Division), Office of Research Integrity (ORI), Office of the Assistant Secretary of Health (OASH), in Rockville, Maryland. Report of Investigation (ROI) Exhibit (Exh.) F-15. She was one of three staff members who served 120-day rotations as the Acting DIO Director. Id. Exh. F-3 at 2. 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. 2020002725 2 On July 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (62) when it did not select her for the position of Supervisory Health Scientist Administrator under Vacancy Announcement HHS-OASH-MP-19-10320381. Id. Exh. A-1. On November 29, 2018, the Agency announced a vacancy for a GS-15 Supervisory Health Scientist Administrator to direct and oversee the programs and activities of the Division of Investigative Oversight. The incumbent served as the senior management official in the Division and reported to the ORI Director. Id. Exh. F-17. Complainant applied and was deemed qualified for the position.2 Id. Exhs. F-19, F-21, F-23. The ORI Deputy Director organized a three-member interview panel consisting of a Health Scientist Administrator from the Agency's Division of Education and Integrity (DEI) (Panelist 1), a Senior Advisor for Scientific Integrity who worked at a different agency but previously had served as the Agency's Acting DIO Director and Acting DEI Director (Panelist 2), and a National Institutes of Health (NIH) Review Policy Officer (Panelist 3).3 The panel interviewed Complainant and the other candidates telephonically and asked them the same questions. The ORI Deputy Director, who moderated the interviews but did not ask any of the questions, subsequently selected a 45-year-old candidate (selectee) for the position. According to the ORI Deputy Director, the panel recommended the selectee. Id. Exh. F-3 at 2-5, 7. Complainant alleged that the Agency did not choose her for the position because of her age. In her affidavit, Complainant asserted that she performed well in the interview. She stated that she had articulated what is necessary for the Division to accomplish its mission and had discussed how she encouraged staff to close cases and work collaboratively. She noted that she had served as Acting Director of the Division and argued that she had better writing and communication skills as well as more experience than the selectee had. Id. Exh. F-1 at 2-4. Complainant stated that, during a November 1, 2018, ORI meeting, OASH leadership discussed the results of an ORI organizational assessment that two outside companies had conducted. She asserted that the Deputy Assistant Secretary for Management and Operations assured the staff "that he was going to fix the personnel problems in ORI" and "promised ORI staff that all the leadership positions would be filled with experienced people who would be staying in their jobs for the long term." 2 In her application, Complainant stated that she served as the DIO Acting Director under a 120- day appointment as a GS-15 "from 1/7/2018-4/28/2018" and also served as the DIO Acting Director "from 12/2/2017-1/6/2017 [sic] as GS 14." ROI Exh. F-19 at 2. 3 The ORI Deputy Director stated in her affidavit that she "needed members that were GS-15 and that were familiar with ORI and the needs of the Department." ROI Exh. F-3 at 2. Panelist 1 stated in his affidavit that he is a GS-14 Health Scientist Administrator. Id. Exh. F-4 at 1. 2020002725 3 In addition, she noted that the EEO Counselor's Report indicated that the ORI Deputy Director had concerns about whether Complainant would be in the position for the long term.4 She argued that these statements demonstrated the Agency's policy about age. Further, Complainant asserted that an employee told her in June 2019 that Panelist 1 had told the employee that the Agency was "going to bring in an outside hire for DIO Director." Id. at 4-6. Complainant denied that she ever bullied or intentionally hurt anyone at ORI. She argued that the vacancy announcement did not list "vision" as a required qualification, that she "had worked to streamline the case review process and get DIO into the 21st century," that the panelists ignored her managerial experience, and that the Agency had selected younger workers for several management positions in the past three years. She maintained that she was a skilled manager and was more qualified for the position than the selectee was. Id. Exhs. F-1 at 8, F-2 at 2, 5, 7-8. The ORI Deputy Director stated that Complainant and the selectee were the candidates who had the best interviews. According to the Deputy Director, the selectee "knocked it out of the park." The selectee had a vision for all of ORI, not just DIO, and wanted "to find ways to encourage DEO and DIO to work together." In response to a question about innovation, the selectee "expressed a need for ORI to move into digital science." The selectee "was focused" and provided "a crisper, clearer view of the future of ORI." Complainant, on the other hand, "was a little restrained." She had a "vision for DIO," but she focused on the Division and investigations rather than all of ORI; she "did not have an expansive view of the future of ORI." In addition, the Deputy Director reported that there was "some reluctance" when the panelists discussed Complainant and her behavior. She stated that Complainant was difficult to work with and can be a "bit of a bully" and "conflictual at times," that Panelist 1 "related some negative behaviors of work done in the other division," and that Panelist 2 "had some things to say about his interactions" with Complainant. The panel questioned whether Complainant would be the best choice in light of her "tendency for unwanted behaviors." Id. Exh. F-3 at 3-6. The ORI Deputy Director stated that OASH leadership gave a presentation about a study of ORI leadership and staffing at the November 1, 2018, ORI meeting. She did not recall the specific comment that Complainant attributed to the Deputy Assistant Secretary for Management and Operations. She stated that the Deputy Assistant Secretary discussed hiring and building capabilities and human-capital planning. According to the Deputy Director, "ORI has churned through a lot of investigators and leadership, and that's been hurtful to the efficiency of the office." With respect to whether she told the EEO Counselor that she was concerned about whether Complainant could perform in the position for the long term, the Deputy Director stated that "[t]he context here likely was related to her behaviors and relationships with others, how divisive and challenging she can be despite her skills and knowledge of DIO's work." Id. at 7-8. 4 According to the EEO Counselor's Report, the ORI Deputy Director "indicated she had concerns whether [Complainant] could perform long term in the position at issue and whether the employees she would be leading would accept her in that position in light of [Complainant's] past difficulties." ROI Exh. B-1 at 5. 2020002725 4 Panelist 1 stated that Complainant "did a good job" in the interview but that the selectee "did an excellent job." He explained that the selectee had "a clearer vision of where the division should go," ideas about "how to use technology to get there," and ideas about how to get people to work together. Although Complainant "had great ideas," the selectee "came across as though he would get the most out of the division." Panelist 1 attended the November 1, 2018, ORI meeting but did not recall the Deputy Assistant Secretary for Management and Operations making the comment that Complainant described. He did not interpret the alleged comment "to mean we should be looking for more youthful staff but rather to hire someone who would be committed to the position long-term versus leaving after a few years, or placing someone in an acting position for a long time." Panelist 1 denied ever saying that the Agency would hire an external candidate for the position. Id. Exh. F-4 at 3-6. Panelist 2 stated that Complainant performed well in the interview but "was not anyone's top choice" for the position. He asserted that Complainant "was lacking in management experience and there were concerns in the area of communication/relationships with stakeholders and federal partners." According to Panelist 2, Complainant "was less than temperate with her dealings with others." He stated that the selectee had "a broader scope of experience" and had shown leadership at DIO by aiding the Division Director, "creating educational opportunities," and "identifying training opportunities for ORI staff." In addition, the selectee answered questions thoroughly and offered useful examples. Panelist 2 did not attend the November 1, 2018, ORI meeting, and "this information was not shared with the SME panel to [his] knowledge." Id. Exh. F-5 at 4-6. Panelist 3 described Complainant's interview as "very professional." She stated, however, that Complainant did not offer effective solutions to DIO problems or "a creative work around" if a request for additional staff was unsuccessful. She did not see Complainant's "vision of the big picture or ability to manage a large group of people"; she would have liked Complainant to have shown "more creativity and vision." Panelist 3 noted that the selectee had management and database experience and more "experience managing large complicated situations and a lot of people." She stated that he had "an outstanding vision of the solution for the staffing problem" and a "more developed vision." She was not at the November 1, 2018, meeting, and she asserted that "[s]taying in the position long term was never discussed during the interview process." Id. Exh. F-6 at 3-5. Two Health Scientist Administrators confirmed that the Deputy Assistant Secretary for Management and Operations stated at the November 1, 2018, meeting that OASH wanted to hire people for the long term. Id. Exhs. F-7 at 4, F-11 at 2. A Writer-Editor and a Scientist Investigator similarly stated that OASH management made comments during a meeting that implied that they wanted to fill ORI leadership positions with younger candidates who would stay for the long term and not retire. Id. Exhs. F-9 at 2, F-10 at 2. One of the Health Scientist Administrators also stated that Panelist 1 told her that the Agency would fill the DIO vacancy with someone from the outside. Id. Exh. F-11 at 2; see also id. Exh. F-10 at 4 (Scientist Investigator assertion that she overheard Panelist 1's statement). 2020002725 5 The Health Scientist Administrators, Writer-Editor, and Scientist Investigator agreed that Complainant was qualified for the Supervisory Health Scientist Administrator position. Id. Exhs. F-7 at 3, F-9 at 2, F-10 at 361, F-11 at 3. 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency gave shifting explanations for its decision not to select her. In that regard, she contends that the ORI Deputy Director told the EEO Counselor that Complainant would not be around for the long term but stated in her affidavit that Complainant lacked vision and had problems working with others. Complainant further argues that the Agency's articulated reasons for not selecting her for the position are false. She notes that the ORI Deputy Director stated that she needed panel members who were at the GS-15 level and that Panelist 1 identified his grade as GS-14. She contends, among other things, that the ORI Deputy Director never counseled her about her behavior, that Panelists 1 and 3 had never worked with her directly, and that Panelist 2 had had "uncomfortable interactions" with the three internal candidates for the position. She also contends that the ORI Deputy Director did not know the selectee and therefore had no knowledge of his leadership potential. She maintains that she was more qualified for the position than the selectee was, that the selectee did not have any ORI or NIH management experience, and that ORI employees "characterized [her] as a strong mentor and a gentle supervisor." Complainant acknowledges that the Deputy Assistant Secretary's reference to individuals who would be "around for the long term" "is open to interpretation" but argues that other ORI employees interpreted it the way that she did. In response, the Agency argues that it articulated legitimate, nondiscriminatory reasons for its action and that Complainant did not establish that its reasons were a pretext for discrimination. The Agency contends that Complainant has not shown that she was plainly superior to the selectee. It also contends that, contrary to Complainant's assertion, the ORI Deputy Director did not offer shifting reasons for not selecting Complainant. According to the Agency, the Deputy Director "identified several areas of concern and highlighted" the panelists' concerns about Complainant's "ability to work with others." Further, the Agency argues that Complainant has not shown that discriminatory animus motivated the panelists' statements. The Agency similarly argues that Complainant has not shown an age-related nexus in the discrepancy between the Deputy Director's statement that that she needed panel members who were at the GS-15 level and Panelist 1's GS-14 status. 2020002725 6 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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”). ANALYSIS AND FINDINGS To prevail in a disparate-treatment claim such as this, absent direct evidence of discrimination, 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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. Texas Dep’t of Community Affairs v. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. 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. See 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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2020002725 7 We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The panel recommended, and the ORI Deputy Director chose, the selectee because he had an excellent interview. He had a vision for all of ORI and a clear view of its future, discussed ORI's need for digital science, and offered ideas about how to use technology and to get people to work together. The selectee also had a broader range of experience. He had management and database experience as well as experience managing complicated situations and a large group of people. In addition, as the ORI Deputy Director noted, there were concerns about Complainant's work interactions. Complainant has not shown that the articulated reasons are a pretext for discrimination. Having considered the evidence of record, we do not find that managers' asserted preference for someone who would stay in the position "for the long term" evinces discriminatory intent in this case. The ORI Deputy Director explained that changes in leadership had hurt efficiency and that her reference to the "long term" related to Complainant's "behaviors and relationships with others." The preponderance of the evidence before us establishes that the Agency had experienced personnel problems and staff turnover and that the use of the phrase "long term" indicated an interest in ensuring stability in the position rather than a preference for a younger candidate. Accordingly, under the specific facts of this case, we find that "long term" reflected a desire for stability and consistency rather than age-based animus. See Leisring v. Clerk of Hamilton Cnty. Municipal Court, 838 F. App'x 956, 960 (6th Cir. 2020) ("The ADEA does not prohibit employers from thinking long term; it bars assuming that an older employee would not be willing to commit to making long-term contributions.") Complainant argues that she was more qualified for the position than the selectee was. In non- selection cases such as failure to hire or to promote, a complainant may demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). Agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141478 (July 31, 2015); see also Burdine, 450 U.S. at 259. Although Complainant served as Acting DIO Director and had more years of experience than the selectee had, the selectee also had worked at ORI and had management experience. Complainant has not shown that her credentials and experience were so plainly superior to the selectee's as to established pretext. Moreover, the panelists and the ORI Deputy Director explained that the selectee performed better in the interview than Complainant did. They noted, for example, that the selectee had a vision for all of ORI, ideas about how to get people to work together, useful examples, and a solution for the staffing problem. Complainant, however, focused on the Division rather than all of ORI and did not offer creative solutions. Complainant's argument that the vacancy announcement did not identify "vision" as a requirement does not disprove that the selected had a better interview. Similarly, her statement that she is not a bully does not establish that the concerns about her interactions and behavior were a pretext for discrimination. 2020002725 8 Finally, we do not find that Panelist 1's GS-14 status establishes that the Agency's articulated reasons were not the true reasons for Complainant's non-selection. There is no evidence that the ORI Deputy Director, who stated that she "needed" GS-15 panel members, knowingly misrepresented Panelist 1's status or otherwise chose him for discriminatory reasons. Complainant has not shown by a preponderance of the evidence that the Agency's articulated reasons are unworthy of credence or that a discriminatory reason more likely motivated the Agency's action. Accordingly, we find that Complainant has not established that the Agency discriminated against her on the basis of age when it did not select her for the position of Supervisory Health Scientist Administrator. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision and its finding of no discrimination. 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 2020002725 9 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020002725 10 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 June 22, 2022 Date