[Redacted], Vickie P., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2022002932 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickie P.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2022002932 Hearing No. 541-2019-00082X Agency No. DOI-OS-18-0611 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 May 11, 2022 final action2 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. 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 action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-07, at the Agency’s Office of Natural Resource Revenue in Denver, Colorado. 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 EEOC regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued the decision on April 1, 2022, and there is no indication that the Agency issued a final order. As such, the AJ’s decision became the Agency’s final action on May 11, 2022. 2022002932 2 On September 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), and age (54) when, on or about July 26, 2018, Complainant learned that she was not selected for two Minerals Revenue Specialist positions, advertised under vacancy numbers ONRR-18-MP-10233568JT (GS-7) (“Vacancy 1”) and ONRR-18-MP-10124636KL (GS-7 and GS-9/11/12) (“Vacancy 2”), based on disparate treatment and disparate impact theories.3 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ granted the Agency’s motion for a decision without a hearing and issued a summary judgment decision on April 1, 2022. Upon review of the record, the AJ found that the Agency correctly identified the claims; undisputed facts; applicable legal standards; and grounds upon which this case should be decided without a hearing. The AJ also determined that Complainant’s views regarding the hiring process, training opportunities and its impact on the selections, and her own qualifications, and her allegations of discrimination were speculative and not supported by the record. As such, the AJ agreed with the Agency and awarded summary judgment in the Agency’s favor. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed, and Complainant filed a brief in support of her appeal.4 The Agency opposed Complainant’s appeal. 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 3 Complainant filed a request to amend her complaint to add the disparate impact claim during the hearing stage. The Administrative Judge granted Complainant’s request on August 21, 2020. 4 Complainant requested an extension to file an appeal brief but did not receive a response to her request. As such, we will exercise our discretion and consider the arguments in Complainant’s appeal brief. 2022002932 3 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 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 she 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. On appeal, Complainant, through her attorney, argues that the AJ’s decision should be reversed because there are numerous disputed issues of material fact and credibility; and the AJ erred when failing to analyze the issues in a sufficient manner as to permit meaningful appellate review. As an initial matter, we are not persuaded that the AJ’s decision insufficiently analyzed the issues. The AJ determined that the Agency’s Motion for Summary Judgment properly presented the relevant undisputed facts and laws, which the AJ agreed with. Further, the AJ found that Complainant’s contentions were speculative and not supported by the record. Complainant prefers a longer discussion by the AJ, but she failed to prove that the analysis was deficient to warrant a reversal of the AJ’s decision. We also find that Complainant did not establish that there are numerous disputed issues of material fact and credibility. Complainant asserts that she provided a plethora of statistical data to support her claims of disparate treatment and disparate impact. Specifically, there was a statistical disparity between those “enjoying a job or job benefit” of 75% male and 64% under the age of 40; and the pool of potential applicants was 58% female and 11% under the age of 40. However, we do not find that Complainant’s statistical data raises a genuine dispute of any material fact, under a disparate impact or a disparate treatment theory of discrimination, as discussed further below. In addition, Complainant offered no arguments in support of her contention that there are credibility issues. As such, we find that the AJ properly issued a decision without a hearing. Disparate Impact To establish a prima facie case of disparate impact, a complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion.”). Specifically, a complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on a complainant to show that “the facially neutral standard in question affects those individuals [within the protected group] in a 2022002932 4 significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Complainant v. Dep’t of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). In this case, Complainant alleged that the Agency’s policy or practice was “giving access to specific minerals revenue specialist training that was inaccessible to all other employees.” Complainant’s Response to Agency’s Motion for Summary Judgment at 11. Even crediting that Complainant raised a challenged policy or practice, she did not offer any statistical data that was related to such practice. Instead, Complainant asserted that while her larger workgroup was 66% female and 33% individuals under the age of 40, the selectees for Vacancy 1 were 67% male and 67% under the age of 40 and the selectees for Vacancy 2 were 33% male and 50% under the age of 40. Id. However, Complainant did not provide any statistics for those who were allegedly provided specific minerals revenue specialist training. At most, Complainant identified one selectee who allegedly received this training, and she stated that “other selectees’ resumes reveal similar training,” without any further details. Id at 5. Complainant failed to meet her burden to prove any disparity linked to her identified challenged practice or policy. As such, we find that Complainant did not establish a prima facie case of disparate impact. Disparate Treatment 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). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For Vacancy 1, the Selecting Official stated that Complainant’s qualifications were comparable to the selectees’ qualifications, but the interviews weighed heavily in the decision. ROI at 117-18. The other two interviewers corroborated that the selectees were deemed better qualified based on their interviews, while Complainant was not as thorough, and she highlighted her accounting experience, but the position was not for an accountant. ROI at 128-9, 139-40. Complainant received a total score of 33 for her interview, as compared to the selectees who received scores of 80, 76, and 69. ROI at 320. 2022002932 5 For Vacancy 2, Complainant was interviewed for the position at the GS-7 and GS-9 levels. One responsible management official responded that Complainant was referred for an interview because her resume contained the exact terminology from the vacancy announcement, but she was not selected because her experience did not compare with the other applicants, and her interview responses did not include answers to the questions or examples of her experience that she claimed on her resume. ROI at 149-52. Another management official also noted that Complainant’s resume included the exact language (word for word) from the vacancy announcement, but after the interview, Complainant was not considered one of the best qualified as compared to the selectees who verbally provided experience that was reflected in their resumes. ROI at 163-5. Another interviewer added that the selectees were better able to express their experiences during their interviews, such as their work with different systems, processes, and spreadsheets. ROI at 175. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. In a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, Complainant only offered broad contentions that she was better qualified because she had more seniority, experience, and education. ROI at 74. However, Complainant did not explain how her experience was plainly superior to any selectee. Further, the Commission has found that number of years of experience does not establish an applicant’s qualifications as observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). Regarding Complainant’s statistics for the disparate treatment claim, the Commission and the courts have held, that while statistics are relevant, statistics alone, especially if they are generalized and overbroad, will not be sufficient to prove pretext in individual complaints of disparate treatment. See Stevens v. Equal Emp’t Opportunity Comm., EEOC Appeal No. 01970848 (Aug. 14, 1997); Talley v. U.S. Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983), cert denied 466 U.S. 952 (1984); Hudson v. IBM Corp., 620 F.2d 351, 355 (2d Cir.), cert denied 449 U.S. 1066 (1980). We find that the Agency explained that Complainant was not selected due to her interview performances, and the generalized statistics offered by Complainant do not undermine the Agency’s proffered reasons for her non-selection for the vacancies at issues. Pretext can also be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2022002932 6 On appeal, Complainant avers that she was denied training, while the selectees received the training. Complainant asserted that the Program Director gives “special training” to secretaries who are between 20 and 40 years old, good looking, and have a muscular body build. ROI at 66- 7. While the Program Director was not directly asked about this “special training,” she responded that she did not know why Complainant held a belief that she lacked access to training, and that the Workforce Development Office provided a multitude of training classes that were open to all employees. ROI at 112. We find that Complainant did not provide any evidence to support her contention regarding any “special training.” Complainant also asserts that other employees’ allegations of discrimination are evidence of discrimination. For example, Complainant provided a declaration from another Secretary who filed an EEO complaint and alleged discrimination when she was not selected for Minerals Revenue Specialist positions in 2018 and 2019, due to her age and disability. However, the Secretary’s claims that she was discriminated against for her own non-selections are not evidence of discrimination against Complainant. We also note that the Secretary only offered speculation that “younger candidates might have been selected over older ones.” Secretary Declaration, dated June 11, 2020. The Secretary provided no specific evidence that the selecting officials for the two vacancy positions in this complaint discriminated against Complainant. While Complainant argues that hiring decisions must be untainted by any consideration of age, she provided no evidence proving that age was a factor in her non-selections. Accordingly, we find that Complainant did not establish disparate treatment based on her age or sex when the Agency did not select her for a position as a Minerals Revenue Specialist, announced under the two vacancy announcements. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision. 2022002932 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). 2022002932 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 December 21, 2022 Date