[Redacted], Madalene A., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 13, 2022

Appeal No. 2021005016 (E.E.O.C. Sep. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madalene A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021005016 Hearing No. 490-2021-00033X Agency No. ARCENORF20FEB00519 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 1, 2021, finding no discrimination regarding her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Workforce Coordinator, GS-13, Deputy Mission Support Division, U.S. Army Corps of Engineers (USACE), Norfolk District, in Norfolk, Virginia. On April 20, 2020, Complainant filed her complaint, which was amended, alleging discrimination based on sex (female), age (over 40), disability, and in reprisal for prior EEO activity when: 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. 2021005016 2 1. She was not selected for the Mission Support Division (MSD) Chief position in that: a. Initially, on January 6, 2020, she was not selected for the MSD Chief position. b. She notified Civilian Personnel Advisory Center (CPAC) and the Selecting Official (SO), Norfolk District Commander, that the announcement was incorrect, but no corrective action steps were taken, so she filed a Merit Systems Protection Board (MSPB) complaint on January 6, 2020. c. The SO posted the vacancy announcement for SCER191514564239 without having critical information in the announcement, IAW AR690 - Acquisition Army Supplement Section. d. The SO submitted an invalid waiver request for the non-qualified male applicant, who happened to be a close and personal friend of the SO. e. The SO offered the position to a non-qualified male applicant and the Agency submitted a waiver request to DACM (Director for Acquisition Career Management) for the Army Acquisition Corps requirement, when no qualified applicant existed on the referral, although she was a fully qualified applicant on the referral list, thereby bypassing and not selecting a qualified female applicant for the lesser qualified male applicant. f. The SO and CPAC rescinded the job offer from a selected candidate and changed the qualifications and reannounced the position without offering it to previous certified candidates. g. On February 17, 2020, the Agency cancelled the vacancy announcement and on February 20, 2020, the SO changed the position description and removed the acquisition requirement from the position description, which had been a requirement for the position, for over 10 years. 2. On August 25, 2020, awards were presented to a group of employees smaller and less significant than the group of employees she submitted for awards in April 2020, whom were not recognized or awarded. In her April 20, 2020 complaint, Complainant indicated that she was now promoted to a GS-14, Workforce Coordinator, at USACE, Norfolk District. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment. Complainant filed her reply. On August 13, 2021, the AJ issued a decision without holding a hearing, finding no discrimination. Complainant indicated that she was a disabled veteran and did not request an accommodation for her disability. 2021005016 3 Regarding claim 1, the Agency initially announced the vacancy, in Announcement Number SCER191514564239, for the MSD Chief, GS-14, position on November 15, 2019. Complainant was one of 52 qualified applicants and she was referred for an interview. After her interview, Complainant ranked in the bottom half of seven applicants who were interviewed. She was not offered the position on January 6, 2020. The Agency initially offered the position to Candidate A, the highest-ranking candidate. Candidate A declined the job offer a few days later and a Selectee, a younger, disabled veteran, male, as the first alternate, was offered the job. The SO then discovered that Human Resources Office made an error in the recruitment process that likely invalidated the original job announcement. The SO rescinded the job offer and cancelled the vacancy announcement on February 17, 2020. The SO stated that he did not know the Selectee prior to his interview for the position at issue. Meanwhile, upon learning of her nonselection, Complainant filed a MSPB Appeal on January 6, 2020, alleging that the Agency’s vacancy announcement and selection process for the GS-14, MSD Chief position at issue resulted in prohibited personnel practices and violated Agency policies and merit system principles. Specifically, Complainant claimed that the vacancy announcement failed to include certain requirements that applicants be current members or be eligible for membership in the Army Acquisition Corps which resulted in certain applicants being included on the referral list who did not qualify for the position. On February 14, 2020, the MSPB, in DC-3443-20-0285-I-1, dismissed the appeal for lack of jurisdiction. On February 20, 2020, the Agency corrected the prior error (i.e., by removing acquisition requirements) and re-announced the MSD Chief position under Announcement Number SCER203104881980. The SO indicated that he was looking for a leader who could best lead the MSD further into the 21st century which required drive to complete the mission, innovation to change legacy processes, and ability to manage and lead across multifunctional areas. There were 62 applicants, including Complainant, who were eligible for the position. After reviewing the eligible applicants’ resume, nine applicants, including Complainant, were referred for interview. One applicant declined and eight applicants were interviewed. Complainant did not make the top three after the interview. The interview panel indicated that Complainant did not adequately convey a vision for how she would lead the MSD; she did not provide examples relative to the interview questions asked; she did not answer some questions asked; and she did not present as having the highest level of ability to lead and integrate the MSD. The Interview Evaluation notes and ratings reveal that Complainant received scores of 25, 28, 26, and 24 (103 for total points) from four interview panelists whereas the Selectee received 38, 38, 42,2 and 41 (159 for total points), respectively, from the same panelists. The AJ noted that the interview panelists consisted of both males and females and senior officials both older and younger than Complainant. 2 It was incorrectly indicated as 39, instead of 42, reflecting the sum of each nine interview question ratings, i.e., 5, 5, 4, 5, 5, 5, 5, 5, and 3. 2021005016 4 The Selectee received the highest ranking after his interview, and thus, the SO selected him for the position effective May 26, 2020. The interview panel stated that the Selectee demonstrated a high level of leadership and communication skills and ability to lead and integrate the MSD. At the time of his selection, the Selectee was not an Agency employee and worked as a Regional Operations Director for DaVita Kidney Care in Virginia. In that position, the Selectee was responsible for managing and patient care for over 800 chronic kidney disease patients with an annual budget in excess of $13 million. Regarding claim 2, the AJ stated that Complainant submitted a total of 14 employees for monetary team awards at issue. The AJ further stated, and the Agency’s Award Data for Fiscal Year 2020 reveals, that at least six of those employees received awards. The Agency stated that awards were given to individuals based on their performance and the Agency’s budget. The Agency indicated that only 1/3 of nominated employees received awards due to its limited award budget. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ further found no evidence the Agency’s reasons were pretext for discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). 2021005016 5 Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Here, Complainant has not claimed that she was denied a reasonable accommodation. In the instant case, the AJ, assuming arguendo that Complainant established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, Complainant was not selected for the MSD Chief, GS-14 position because she did not interview well. The record indicates that Complainant did not interview well for the initial November 15, 2019 vacancy announcement. She ranked in the bottom half of seven applicants who were interviewed. The Agency rescinded the vacancy announcement due to an error by the Human Resources Office in the recruitment process, and no one was selected. The Agency corrected the error by deleting the acquisition requirements for the position and re- announced the position on February 20, 2020. Complainant applied and was interviewed. She did not interview well again and did not make the top three of eight applicants who were interviewed. The interview panel indicated that they were looking for an individual who possessed the highest level of leadership skills and experience. The panel stated that Complainant did not demonstrate a high level of leadership skills and she did not adequately answer questions asked. Complainant claimed that she was better qualified for the position than the Selectee because she had been a part of the MSD over ten years, served as Acting Chief at times, and possessed contracting certifications (for acquisition). However, there is no indication these attributes were required for the position at issue. 2021005016 6 Upon review, we find that Complainant failed to show that her qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Further, there is no evidence the Agency’s business decision to remove the acquisition requirements for its selection process for the MSD Chief position and/or its position description was based on discrimination as alleged. Regarding claim 2, although Complainant nominated 14 employees for team awards, the Agency were only able to award six employees based on their performance and its budget. The Agency’s Award Data record reveals that 11 of those 14 employees received team and/or individual awards during Fiscal Year 2020. Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding 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 . 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. 2021005016 7 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. 2021005016 8 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 September 13, 2022 Date