[Redacted], Valda R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 7, 2022

Appeal No. 2021004435 (E.E.O.C. Sep. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexandria S,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022002592 Hearing No. 510-2020-00054X Agency No. HS-CIS-00615-2019 DECISION On April 8, 2022, 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 11, 2022, final order concerning her 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., 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Officer-II (ISO) at the Agency’s Orlando Field Office in Orlando, Florida. Report of Investigation (ROI) at 75. Complainant was a 58-year-old female (year of birth [YOB] 1961); and she had cancer/lymphoma. 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 2022002592 Complainant applied for the position of Senior Immigration Services Officer-III (vacancy announcement number CIS-10333868-D10/ORL). Complainant qualified for the position. ROI at 285-86 and 296-303. The resume review panel consisted of a Section Chief (Section Chief [West Palm Beach Field Office]), a Special Assistant (Special Assistant [Southeast Regional Office]) and a Supervisory ISO (SISO [Orlando Field Office]). The resume review panel individually reviewed and ranked all ten applicants’ resumes, including Complainant’s. ROI, at 101, 107, and 134. An interview panel was created and consisted of three members: Section Chief, Supervisory Immigration Officer (SIO [West Palm Beach Office]) and SISO. Interviews were conducted by telephone of seven candidates and the panel members individually ranked their responses to the same six questions. All candidates also were asked to provide a writing sample, which was scored by the interview panel members. ROI at 102, 117-18, 123-25, and 136-37. The candidates were evaluated on their responses to the interview questions (1 -5 points for each of the six questions), a review of their resume (1 to 4 points in four categories), and a review of the writing sample (1 to 3 points). ROI at 102, 117-18, 123-25, and 136-37. Each criteria was given the respective numerical value which were tabulated together in the scoring/ranking process. See ROI at 384-475. After the interviews were completed, the individual panel member’s scores were added together for a total score for each candidate who were then ranked according to their combined scores. The five highest scoring candidates received further consideration and a supervisory recommendation was conducted. No panel member provided a supervisory recommendation for any of the candidates. Based on the criteria listed, a selection recommendation was sent from interview panel member SISO to the selecting official, a Field Office Director (Director). ROI at 496-97. The highest ranking candidate (Candidate 1) scored 150 total points. However, they were not selected because the supervisor did not recommend them for the position. ROI at 101, 495-97 and 477. The record of the resume, interview and writing same scores indicated that the highest scoring individual was identified as female, born in 1986 and did not have a disability. ROI at 307 and 495. The second highest score was Candidate 2, with a total of 145 points. Candidate 2 was identified as male, born in 1980 and reportedly with a disability. Id. Candidate 2 received a strong supervisory recommendation for the position. Complainant had a total score of 99 points. Complainant and Candidate 2 received the same resume score of 57 points. Candidate 2 failed to submit the writing sample, so he received 0 points and Complainant received 6 points. However, whereas Complainant received 42 points on the interview, Candidate 2 received a total interview score of 68 points. Complainant’s interview score was 6th out of the 7 interviewees. The interview panel members scored Complainant identically, with 14 points each. Candidate 2 received 23 points from Section Chief and SISO, and 22 points from SIO. 3 2022002592 The interview panel members all consistently indicated that Complainant did not provide in depth or thorough answers. For example, Section Chief stated that Complainant’s responses were weak and generic, and did not provide the specific examples the panel was looking for. ROI at 136-37. Candidate 2, on the other hand, provided responses that included great examples demonstrating awareness and success of the office, and responded thoroughly to the questions asked. Id. SISO was previously Candidate 2’s supervisor. SIO had served with Candidate 2 on a prior detail, and went with Candidate 2, two of the other interviewees, and other colleagues to dinner while on that detail. Complainant was notified on December 21, 2018 that she was not selected for the position. ROI at 501. On April 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical), and age (55) when Complainant was not selected for the position of Immigration Services Officer in the Orlando Field Office. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties engaged in discovery. On February 25, 2021, the Agency filed a motion for decision without a hearing (Agency’s motion). On March 12, 2021, Complainant responded. Having reviewed all evidence contained in the ROI, all documents provided by the parties, and all the parties' briefing, the AJ assigned to the case found that there were no genuine issues of material fact for which a hearing would be necessary. The AJ granted the Agency's motion and issued a decision without a hearing on February 24, 2022 in its favor. The AJ assumed for the purposes of the decision that all panel members were aware of Complainant’s sex based on her name. The AJ also assumed that they were familiar with Complainant’s length of service based on her resume. SISO knew Complainant; and the AJ assumed that she was aware of Complainant’s disability, as Complainant stated that she discussed it with her. See ROI at 94. The AJ observed that other panel members did not know Complainant personally and were not aware of her disability. Id. The AJ observed that Complainant did not dispute that her responses to questions were not as thorough or complete as the responses provided by Candidate 2, the selectee. The AJ noted Complainant’s contention that the interview process itself was flawed on the basis that SIO previously served on the detail with Candidate 2 and went to dinner with him as part of a group; and that SISO was Candidate 2’s supervisor. The AJ asserted that the argument failed. According to the AJ, Complainant cited no authority for the proposition that everyone involved in a hiring process must have had no prior interaction or supervisory relationship with the interviewees, or that if they did it somehow leads to the conclusion that the decision was discriminatory. 4 2022002592 The AJ asserted that there was no dispute that SIO knew Candidate 2; and that when they were on a detail, several people went out to dinner together, including SIO, Candidate 2 and other people who were ultimately interviewed for the position at issue. What the Complainant did not explain, observed the AJ, was how that meant her rating of Complainant’s interview was discriminatory. Similarly, stated the AJ, there was nothing to establish that SISO’s supervision of Candidate 2 meant that her interview ranking was based on sex, age or disability. Citing to Commission precedent, the AJ stated that even if preselection occurred (which Complainant did not even appear to allege), it is not unlawful unless Complainant can prove that the preselection was driven by discriminatory animus as preselection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not some prohibited basis. According to the AJ, although Complainant generally concluded that SISO had shown “preferential behavior toward male employees,” she cited for this only generally being “chatty” with male employees and telling a female employee that she was a “bad influence.” The AJ determined that there was no finding of discrimination cited, or any sex-based comments by SISO identified whatsoever. Significantly, the AJ noted, all the interview panel members rated the interviewees similarly. In other words, asserted the AJ, it was not as if the interview scores assigned by SISO somehow differed significantly from those of those from the interview scores assigned by Section Chief. According to the AJ, Section Chief did not know or work with any of the applicants and was not accused of having a discriminatory motivation. The AJ observed that all panel members came to the same conclusions regarding the interviews; the selectee’s responses were substantially better than Complainant’s. According to the AJ, it was also notable that the individual who initially ranked highest in the interview was also female. She was not selected due to a non-recommendation by her supervisor. However, observed the AJ, the same interview panel who ranked Complainant with a total score of 42 also gave that individual, Candidate 1, an interview score of 93. This, the AJ stated, tended to belie Complainant’s contention that Complainant’s sex was a factor where the person who scored the highest was the same sex as Complainant. In sum, asserted the AJ, there was nothing in the undisputed facts of record to establish that the Agency’s explanation for the selection was pretextual and that the decision was based on Complainant’s sex, age or disability. The AJ therefore found that Complainant had not established that she was discriminated against based on her protected bases. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 5 2022002592 CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations and contests the AJ’s decision and the Agency’s final order. According to Complainant, the AJ’s decision and order granting the Agency’s motion was improperly rendered. Complainant argues that she established a prima facie case of discriminatory non-selection based on her protected bases and that she demonstrated that the Agency’s proffered reasons for the non-selection were pretext for discrimination and otherwise unworthy of credence. Complainant alleges that there were genuine issues of material fact still in dispute and that there were several issues of credibility in the testimony of Agency officials, all of which, Complainant asserts, necessitated a hearing on the merits of her case and precluded the AJ from rendering the decision to grant the Agency’s motion. On appeal, among other things, the Agency reiterates it’s stated explanations for Complainant’s non-selection. The Agency argues that there is no evidence to support Complainant’s assertion that the record was inadequate to support a finding of no discrimination. The Agency expresses agreement with the AJ’s decision which, it asserts, is supported by the full record that included a 506-page Record of Investigation. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 6 2022002592 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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. 7 2022002592 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. 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 October 12, 2022 Date