U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Selma D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2022004160 Agency No. HS-FEMA-01742-2021 DECISION 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 July 22, 2022 final decision concerning her equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant was an applicant for employment with the Agency. She had previously worked for FEMA as a Logistics Management Specialist in the Logistics Systems Division located in Washington, D.C. She had been terminated from her position with the Agency in October 2019. On July 22, 2021, Complainant initiated EEO counselor contact, but informal efforts to resolve her issues were unsuccessful. On November 2, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her race and national origin (African American), sex (female), disability (autism), and in reprisal for engaging in prior 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. 2022004160 2 protected EEO activity (EEO complaint identified as Agency No. HS-FEMA-01522-2019)2 when: 1. On or around June 2021, Complainant was not selected for the position of Program Analyst, GS-12 CORE, Vacancy Announcement Number (VAN) FEMA-21-KAT-435968-CORE. 2. On June 23, 2021, Complainant became aware she was excluded from applying for the position of Deputy Program Manager, GS-0340, VAN FEMA-20-KAT- 354708-MP. 3. On June 30, 2021, Complainant was not selected for the local hire position of Customer Representative-IH-00, VAN FEMA-21-EGB-462025-LH. 4. On August 2, 2021, management withdrew Complainant’s tentative job offer for the local hire position of Customer Service Representative-IH-00, VAN FEMA- 21-EGZB-475363-LH. 5. In 2018, management denied Complainant an interview for an Assistant Program Manager position. 6. In or around 2019 on multiple dates, a senior management official denied Complainant’s request for a reassignment. 7. On October 7, 2021, the Agency’s Office of Professional Responsibility (OPR) submitted false and misleading information regarding Complainant’s Congressional inquiry. In its November 18, 2021 Notice of Partial Acceptance of the Complaint, the Agency dismissed claims 5, 6, and 7 on procedural grounds. First, the Agency dismissed claims 5 and 6, pursuant to 29 C.F.R. § 1614.107(a)(2), as untimely raised. The Agency found that Complainant initiated EEO counselor contact on July 22, 2021, which it determined was beyond the regulatory 45-day limitation period. Additionally, the Agency determined that Complainant failed to raise these claims, occurring in 2018 and 2019, in her prior EEO complaint, Agency No. HS-FEMA-01522- 2019, which included allegations occurring during that same time period. Therefore, the Agency determined that Complainant had the opportunity to raise claims 5 and 6 in her prior complaint but failed to do so within 45 days of the alleged discriminatory actions, and the Agency dismissed these claims. 2 In the prior complaint, Complainant alleged, in pertinent part, that she was discriminated against based on race, sex, and in reprisal for prior protected EEO activity when, on November 29, 2018, her supervisor denied her request for reassignment. 2022004160 3 The Agency dismissed claim 7, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that claim 7 lodged a collateral attack on the Office of Professional Responsibility (OPM) process, and therefore, was outside of the EEO complaint process jurisdiction. After its investigation into the remaining accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant did not respond. On July 22, 2022, the Agency issued its final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during the investigation. The Agency affirmed the procedural dismissal of claims 5 and 6. However, the Agency reversed its initial procedural dismissal of claim 7 and discussed this claim on the merits. The Agency found no discrimination or retaliatory animus as alleged for claims 1 - 4 and 7. The instant appeal followed. On appeal, Complainant disputes the Agency’s initial dismissal of claim 7.3 Complainant further again asserts that she was discriminated against as alleged. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health 3 Because Complainant does not dispute the procedural dismissal of claims 5 and 6, we need not address these claims further in this decision. 2022004160 4 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the responsible Agency officials articulated legitimate, non- discriminatory reasons for the disputed actions as detailed below. Non-Selections (Claims 1 - 4) Program Analyst, GS-12 CORE, Vacancy Announcement Number (VAN) FEMA-21-KAT- 435968-CORE (claim 1) The Information Management Branch Chief (IT Chief) (Caucasian male) was the selecting official for the vacancy at issue. The IT Chief explained that twenty-eight candidates, including Complainant, were included on the certificate list of qualified candidates. The IT Chief further explained that the candidates’ resumes were reviewed, scored, and that only the top five scoring candidates were selected for an interview. Complainant was among those selected for an interview. The IT Chief indicated that the interviews were conducted by a three-member panel (which included himself and two other individuals - Panel Member 1 and Panel Member 2), all candidates were asked the same questions, and the panel scored their responses. The Selectee (African American, male) had the highest score, and Complainant had the second highest score. The IT Chief clarified, however, that Complainant’s score “was a far second.†Panel Member 1 testified that the interview consisted of eleven questions and out of those eleven questions, Complainant “either did not directly answer four of them or got off track of the initial question.†Panel Member 1 also noted that Complainant failed to provide specific examples to some questions. In contrast, Panel Member 1 indicated that the Selectee was able to directly answer all questions and provided more supporting examples instead of providing “broad, stock answers.†Deputy Program Manager, GS-0340, VAN FEMA-20-KAT-354708-MP (Claim 2) The Logistics Systems Division Director (Logistics Director) (Caucasian malae) testified, and the Human Resource Specialist confirmed, that this position was open to all current Agency employees. The Logistics Director explained that Complainant was not eligible to apply to this position because, at the time, she was not employed with FEMA. The record confirms that Complainant’s previous employment with the Agency had ended in October 2019. The Logistics Director further testified that his decision to make the vacancy position available solely to internal candidates had nothing to do with Complainant. 2022004160 5 The Logistics Director explained that when the position was posted, he did not know who would apply and he had no reason to believe that a former employee, terminated from Agency employment in October 2019, would consider applying for the position in March 2020.4 Although Complainant argues on appeal that she was more qualified than the Selectee, Complainant has not disputed the Agency’s contention that at the time she was not an Agency employee, and therefore, was not eligible to apply for this position. A copy of the relevant position vacancy announcement confirms that the position was: [O]pen to Internal Employees (current DHS-wide employees on a career/career conditional appointment); DHS/SA Interchange Agreement Eligibles; current FEMA employees who are DRRA Eligible; and Career Transition Assistance Program (CTAP Eligibles) only. It is undisputed that Complainant did not meet this definition of eligible candidates. Customer Service Representative-IH-00, VAN FEMA-21-EGB-462025-LH (Claim 3) The Program Analyst (Caucasian male) in the Service Center Support was the selecting official and explained that 1140 candidates applied for the multiple Customer Service Representative positions located in a number of different locations. A total of 456 candidates were recommended as qualified for consideration, including Complainant. Complainant applied for consideration for two different locations. However, Complainant later notified the Agency that she wished to withdraw her application for a position in Virginia. Complainant was interviewed by a Supervisory Customer Service Representative (female, two or more races). During the interview, Complainant disclosed that she was a former Agency employee who had been terminated in October 2019. As a result, the interviewer did not recommend Complainant for further consideration. Customer Service Representative-IH-00, VAN FEMA-21-EGZB-475363-LH (Claim 4) The Program Analyst said that, on July 14, 2021, Complainant was tentatively selected for this position, subject to a security clearance. The Program Analyst noted that in a July 22, 2021 email, security denied her clearance, and consequently, Complainant’s job offer was rescinded on August 2, 2021. A copy of the July 21, 2021 Notice of Ineligible Determination states that preliminary screening checks revealed “personnel security concerns that cannot be resolved at this time†and went on to specify that the concerns were Complainant’s “recent employment termination†from the Agency. 4 The record indicates that the Logistics Director was Complainant’s prior supervisor and was also the responsible management official who recommended Complainant’s termination from the Agency effective in October 2019. 2022004160 6 Thus, it appears that clearance was denied because Complainant had been terminated for cause by the Agency in October 2019. In this regard, the Branch Chief stated that Complainant “was treated no different than any other candidate who is offered a position and does not pass a background check.†The Branch Chief further indicated that Complainant could apply for other Agency positions if her termination was overturned through her pending appeals on the matter. Congressional Inquiry (Claim 7) A copy of Complainant’s formal complaint indicates that Complainant alleged that the Agency provided “false/misleading information†in response to a Congressional inquiry. Specifically, Complainant alleges that the Agency stated that the Merit Systems Protection Board (MSPB) had upheld the Agency’s October 2019 decision to terminate her employment even though her appeal regarding this matter was still pending in federal court. However, our review of the record indicates that the MSPB had issued a decision regarding her termination. Consequently, Complainant has failed to demonstrate that the Agency provide false or misleading information when it stated that the MSPB had upheld its decision to terminate Complainant’s employment.5 No Pretext On all five claims, after careful consideration of the evidence of record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the reasons proffered by management officials for the disputed actions were a pretext masking any motivation based on Complainant’s race, national origin, sex, or disability, or was the result of unlawful retaliatory animus for her prior EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish that discrimination or unlawful retaliation occurred. 5 The record indicates that an MSBJ Judge issued a July 30, 2020 decision, identified as MSPB Docket No. DC-0752-20-0145-I-1, upholding the Agency’s decision to terminate Complainant’s employment. On petition for review, this Commission concurred with the MSPB decision concluding Complainant had failed to establish her discrimination claims regarding the termination. See EEOC Petition No. 2021000075 (May 24, 2021). 2022004160 7 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). 2022004160 8 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 20, 2023 Date
