Sona B.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

01-2013-2913-0500 (E.E.O.C. Oct. 2, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sona B.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120132913
Hearing No. 471-2011-00100X
Agency No. 1105057

DECISION

Complainant filed an appeal from the Agency’s July 24, 2013 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.
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the U.S. Equal Employment Opportunity Commission (EEOC or
Commission) AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Criminal
Investigator, GS-12, with the Agency’s Office of Labor and Management Standards (OLMS),
located in Detroit, Michigan. On March 7, 2011, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the basis of sex (female) when on
December 20, 2010, she was notified that she was not selected for the position of GS-13
Senior/Lead Criminal Investigator (SLCI).

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). Complainant timely requested a hearing. The AJ held a hearing
on July 23 and 24, 2012, and issued a decision on May 6, 2013. The Agency subsequently

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.
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issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Agency's Articulated Legitimate Reason

The AJ concluded in her decision that the Agency articulated legitimate, non-discriminatory
reasons for choosing the selectee (SE2) (male) over Complainant for the SLCI position and
Complainant failed to prove pretext. Specifically, the AJ found that the selecting official (SO)
selected SE2 because his past performance was consistently higher than Complainant’s.
Specifically, the AJ found that the preponderant credible evidence in the record establishes that
SE2 was highly efficient and effective in conducting investigations. In addition, the record
shows that SE2 was motivated, had self-initiative, and was highly engaged during staff
meetings in discussing cases. In addition, the record shows that SE2 was always rated as
"highly effective" while Complainant's appraisals were mostly "effective." The AJ further
noted that the record establishes that SE2’s processing times were faster than Complainant’s.
Accordingly, the record supports SE’s explanation that he found SE2’s quality and quantity of
work better than Complainant’s. The AJ also noted that the record supports SO’s claim that
SE2 was better prepared for case reviews by discussing them thoroughly while Complainant
was often not well-prepared. The AJ noted that SO’s reasons for selecting SE2 were
corroborated by a former supervisor (S1) and a former senior investigator (SI).
.
Pretext

Complainant asserted that the reasons that SE2 was deemed better qualified are not true. She
also questioned SO’s motives for reposting the job announcement a second time after the first
selectee (SE1) changed his mind about wanting the job. In addition, Complainant asserted that
SO's actions showed that he favored male investigators.

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Assertion that SO Delayed Reposting Job Announcement

The SLCI position was first posted in May 2010. SO selected SE1 for the position but he
resigned two weeks later. Complainant asserted that SE1 had already decided to take another
job when he was offered the SLCI position and that SO knew that SE1 was leaving for another
position when he offered the SLCI job in order to delay the hiring process so that SE2 could
have time to qualify for the position. The record shows that SE2 would not have been
qualified to compete for SLCI position in May 2010, because he did not have his year in at a
journeyman level at that time. The record further shows that SO was given permission to
repost the SLCI position on July 27, 2010. Complainant asserted that there was no reason to
repost the job vacancy since she and C1 were already deemed qualified.2

She further claimed
that SO purposely waited until after he returned from his vacation to repost the job vacancy to
allow SE2 to complete his year at the journeyman level in order to be qualified for the
position. The job vacancy was reposted on October 13, 2010.
The AJ found that Complainant's assertion that the reposting of the position was purposely
delayed is not supported by credible testimony and evidence. The AJ noted that SO credibly
explained that the position was not re-posted until October 2010, because of other pressing
work related to the end of the fiscal year. The AJ further found that SO credibly denied any
efforts to delay the posting. In addition, the AJ concluded that the preponderant evidence
establishes that SO would have been qualified for the position even if the job was reposted
earlier because he merely needed to meet the time-in grade requirement within 30 days of the
job posting. So if the job was reposted on September 10, 2010, when SO began the reposting
process or even in August 2010, SE2 would have been qualified. The AJ concluded that aside
from Complainant’s bare uncorroborated assertions, the record did not support the finding that
SO delayed the reposting of the SLCI position.

Assertion that SE2 was not the Superior Candidate

The AJ noted that Complainant alleged that she should have been selected over SE2 because
she had superior qualifications. Specifically, Complainant claimed that she had more
journeyman experience as a criminal investigator than SE2. Complainant also noted that she
had worked for the Michigan Game Control Board for five years before coming to the
Department of Labor. In addition, Complainant has a Master's degree while SE2 only has a
Bachelor's degree. She further stated that she has also received good job awards and has
proven herself but that SO would not recognize her work because he preferred male
investigators.

The AJ concluded that SO credibly testified that he did not believe having a Master's degree
versus a Bachelor's degree made Complainant’s qualifications superior to SE2. In addition,
the AJ noted that SO credibly testified that he gave more weight to factors such as performance
and quality of work. Moreover, the difference in OLMS experience between the Complainant

2 The first posting resulted in three qualified candidates (SE1, Complainant and C1).
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and SE2 was not great. Complainant had six years with OLMS and SE2 had four years with
OLMS at the time of the selection. The AJ concluded that Complainant's length of experience
or seniority and her educational degrees did not indicate that she was observably superior to
SE2.

Allegation that SO Assigned More Cases to SE2

Complainant also disputed SO's claim that SE2's past performance was continually higher than
her performance, that SE2 was more efficient and effective in conducting investigations, and
that he had better case management skills. Complainant believed that SO assigned more cases
to SE2 which gave him more opportunities to complete more complex cases. In addition, C1
testified that she felt that SO gave SE2 more criminal case assignments which gave him the
opportunity to work on more complex cases. She believed that SO seemed to take a more
vested interest in giving the men more complex investigations and grooming them to be more
promotable.

The AJ noted that SO credibly rebutted Complainant's and C1's allegations. SO testified that
he assigned cases based on their complexity, the investigator's caseload and experience. He
also made sure that criminal cases were assigned appropriately to maintain the investigator's
grade. In addition, the AJ concluded that SO credibly testified that he assigned SE2 more
cases because he demonstrated a greater capacity and desire to handle more cases
simultaneously. The AJ found the preponderance of the evidence established that SE2
processed cases more quickly than Complainant and that SE2 sought out additional casework
while Complainant did not. Thus, the AJ concluded that Complainant did not establish that
SO’s reasons for assigning more cases to SE2 was based upon Complainant’s sex.

Assertion that SO Favored Male Investigators in Evaluations

Complainant alleged that SO favored male investigators in performance evaluations. In
support of this assertion, Complainant pointed out that she appealed her performance rating for
FY 2009 from SO. As a result, her rating was changed from "meets" to "exceeds." The AJ
concluded, however, that this one-time reversal of a performance rating is not sufficient to
show that SO rated her and other females lower because of their sex. The AJ noted that the
evidence shows that during the same period SO gave other female subordinates higher ratings
than Complainant. The AJ also found that the one-time reversal of Complainant’s performance
rating does establish that her qualifications were higher than SE2. The record shows that SE2
was always rated "highly effective” on his appraisals while Complainant was rated "effective"
on most of her appraisals.

Assertion that SO did not Require Male Investigators to Submit Work

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The AJ noted that SO and S1 credibly testified that both male and female investigators were
required to submit their written work for review and Complainant failed to present evidence
supporting her claim that her work was far more scrutinized by SO.

Assertion that SE2 was too Aggressive during Interviews

Complainant alleged that SE2 was too aggressive in conducting interviews which indicated a
weakness in his performance. The AJ noted that two other co-workers agreed with
Complainant’s assessment. However, there was no indication that any of his cases were
overturned because of his interview tactics. The AJ concluded that Complainant's allegations
regarding SE2’s interview style did not establish that SO’s reasons for selecting him was a
pretext. The AJ noted that SO credibly denied that he received any substantiated complaints
about SE2 being overly aggressive in his interviews. He received one informal complaint but
placed no weight on it because he did not agree with it. Moreover, S1 confirmed that he never
observed SE2 interview inappropriately and never received any complaints about his interview
style. In sum, the AJ concluded that the record did not show that SO believed that SE2’s
interview style was too aggressive. Accordingly, the AJ found that Complainant’s assertion
failed to establish pretext.

Assertion that SO Socialized with SE2 and Other Male Investigators

Complainant asserted that SO would go to sporting events or local bars on off time with only
the male investigators which reflected SO's preference for male investigators over female
investigators. The AJ noted that Complainant could identify only one occasion when such an
outing actually took place. In addition, the AJ noted that SO credibly explained that on rare
occasions he would join SE1 and SE2 for a drink after work but only at their invitation. SE1
and SE2 also testified that SO never initiated getting together after work. The AJ found that
Complainant’s contentions did not infer any sex discriminatory animus by SO and did not show
pretext in the reasons SE2 was selected for the SLCI position.

Upon review of the evidence, we agree with the AJ’s findings and conclusions herein that
Complainant failed to present sufficient evidence of pretext or discriminatory animus on the
part of the selecting official. As noted by the AJ, Complainant's assertions regarding SO
showing favor to SE2 and other male investigators were not supported by the credible
evidence.

In addition, Complainant failed to show that her qualifications are observably superior to SE2.
While she has a Master's degree and two more years experience in OLMS than SE2, the
record does not support the conclusion that her qualifications are observably superior. The
record shows that SE2 was highly motivated and outperformed everyone including
Complainant. Accordingly, we agree that Complainant did not carry her burden to show that
SO’s selection of SE2 was motivated by sex discrimination.

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CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final action which
adopted the AJ’s finding that Complainant did not establish sex discrimination as alleged.3

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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”

3 We note that Complainant does not raise any issue on appeal.
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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 2, 2015
Date