[Redacted], Maxima R., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Mar 23, 2023

Appeal No. 2022000140 (E.E.O.C. Mar. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2022000140 Hearing No. 570-2019-00662X Agency No. HS-USSS-01792-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 17, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 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 Senior Protective Intelligence Research Specialist, GS-13, in Office of Strategic Intelligence and Information, Protective Intelligence and Assessment Division, United States Secret Service, Washington, D.C. On June 1, 2018, Complainant filed her complaint alleging discrimination based on race (African American), 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. 2022000140 2 1. On May 25, 2018, she was not selected for the Intelligence Operations Specialist (Protective), GS-0132C-14 position, advertised under Job Opportunity Announcement Number SII-TV037-18-MP. 2. On July 13, 2018, she was not selected for the Supervisory Intelligence Research Specialist (Protective), GS-0132A-14 position, advertised under Job Opportunity Announcement Number SII-TV159-MP. 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 EEOC Administrative Judge (AJ). 29 C.F.R. § 1614.108(f). Complainant requested a hearing. Supervisory AJ issued a Notice of Proposed Summary Judgment. The parties responded to the notice. After Supervisory AJ’s retirement, the case was assigned to AJ1. AJ1 issued a decision without holding a hearing, finding no discrimination. Complainant indicated that she had multiple sclerosis. Complainant stated that her medical conditions did not affect performing the essential duties of her position or the positions at issue. Regarding claim 1, the Agency convened four manager interview panel members. Each panel member reviewed applicants’ resumes based on their technical skill related to the position at issue and scored them. The interview panel initially offered interviews to six applicants (one was an external applicant and five were internal applicants) but on the day of the interviews, one of two recommending officers asked the panel to interview all internal applicants out of courtesy. There were seven internal applicants, including Complainant. Complainant accepted the late interview offer but the other applicant declined. The interview panel interviewed seven applicants, including Complainant. The interview panel asked the applicants the same five questions. Each panel member independently rated the responses and the overall score from each was added to create a cumulative score. The panel reported cumulative scores of 122, 119, 97, 79, 62, 88, and 57 after interviews. The panel recommended the top two applicants, Selectees A and B, both GS-13, Senior Protective Intelligence Research Specialists, with the cumulative scores of 122 and 119 to two recommending officers who then recommended the same to a selecting officer, Deputy Director. The Deputy Director selected Selectees A and B for the position as recommended. Specifically, the panel members indicated that Selectees A and B, in part, had superior expertise regarding the position duties, provided comprehensive oral and writing briefings to high level personnel, had a proven track record of collaboration with internal and external partners, and worked effectively in high-pressure situations and tight deadlines. The panel members stated that Selectees A and B had excellent resumes indicating their leadership capabilities and their verbal responses to the interview questions demonstrated superior verbal articulation. 2022000140 3 The panel members stated that Complainant’s responses to the interview questions were vague or dismissive. When she was asked to describe a time when she identified an emerging trend, Complainant responded, “we don’t have enough manpower, which creates a backlog.” Complainant also indicated she was “stressed” during a previous assignment when multiple supervisors reviewed her assessment. Complainant did not perform well during the interview. Complainant ranked seventh out of seven applicants. Regarding claim 2, the record reflects that the Agency was looking for an individual who possessed leadership qualities. The three interview panel members independently reviewed the applicants’ resumes. The panel then interviewed six applicants, including Complainant. The applicants were asked the same eight questions and were asked to review an executive summary. The panel stated that Selectee C, a GS-13, Senior Protective Intelligence Research Specialist, interviewed well and demonstrated her leadership qualities and breadth of experience based on the substance of the answers she provided during the interview. Selectee C expanded on various topics during her interview, and she was clear and concise when presenting examples. The interview panel members indicated that Complainant’s answers were not substantive in nature and lacked examples to support her answers. Complainant emphasized her 19 years on her job. The interview notes reflect that when she was asked the last interview question of why she wanted to be a supervisor, Complainant responded saying because “after 19 years, I deserve it at this point.” The applicants were given seven minutes to review an “executive briefing” and brief it back to the interview panel as if the panel was the Executive Review Board. The position at issue called upon the incumbent to brief the Board with little to no preparation time. The interview notes indicate that Selectee C briefed back the document in a concise and succinct manner, was not frustrated, made eye contact with the interview panel, and barely looked down at the paper. The interview notes reflect that Complainant did not state the classification of document, essentially read word for word from the document, voice cracking, seemed very nervous, did not summarize well, and did not make eye contact. At the conclusion of the interviews, the panel did not assign scores to the applicants, but rather put them into three categories of best qualified, qualified, and minimally qualified. The panel placed Selectee C in the best qualified category. Complainant was placed in the minimally qualified category. The panel recommended Selectee C for the position to the recommending officers who forwarded the same to the Executive Review Board. The Executive Review Board selected Selectee C for the position as recommended. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. 2022000140 4 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). Complainant must initially establish a prima facie case by demonstrating that Complainant 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 Dep’t of Community Affairs 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were 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 were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. 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. 2022000140 5 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. 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 Serv., 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. In the instant case, Complainant has not claimed that she was denied a reasonable accommodation for her disability. In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting her for the positions. The record reflects that Complainant did not interview well during the interviews for the positions. After the interviews, Complainant ranked seventh out of the seven applicants for the Intelligence Operations Specialist position and was placed in the minimally qualified category for the Supervisory Intelligence Research Specialist position. Further, Complainant failed to show her qualifications for the positions were plainly superior to the selectees’ qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Based on a thorough review of the record, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022000140 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. 2022000140 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 March 23, 2023 Date