U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna W.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2019003420 Hearing No. 450-2017-00267X Agency No. DEA-2016-00734 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 March 29, 2019, 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., 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 was employed as a Recruitment Assistant at the Agency’s Dallas Field Division located in Dallas, Texas. She had held this position since 2002 and had been an Agency employee for 22 years. Her first-line supervisor was S1, the Administrative Officer. Complainant’s prior EEO activity took place in the 1999 - 2000 timeframe. On August 10, 2016, Complainant filed a formal complaint, which was subsequently amended, alleging that: 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. 20190034202 1. She was not selected for an Evidence Technician position, vacancy announcement F-SFL6-1562602-MP-TSH, on or around April 11, 2016, because of her sex (female), age (over 40), and in reprisal for prior EEO activity. 2. She was not selected for a Personnel Liaison Specialist position, vacancy announcement H-DA-16-1604009-MP-SRB (PLS 2016), on or around April 11, 2016, on the bases of her age (over 40) and in reprisal for prior EEO activity. 3. She was not selected for a Personnel Liaison Specialist position, vacancy announcement H-DEA-17-1827720-MP-SRB (PLS 2017), on or around January 17, 2017, in reprisal for prior EEO activity. With regard to claim 1, the record indicated that C1 (female, under 40, no prior EEO activity) was selected for the position. The Evidence Technician position is located at the Agency’s South- Central Laboratory, in Dallas, Texas. Among other duties, the Evidence Technician: Receives, inspects, catalogs, organizes all evidence, drug and non-drug evidence, as well as legal document submissions, while directly maintaining and protecting the chain of custody for laboratory evidence submissions. Responsible for the proper storage, retrieval, and tracking of evidence. Conducts and oversees annual inventory and reconciliation’s of all evidence by comparing the computerized date against the physical evidence. Complainant and C1 were the only two applicants listed on the Merit Promotion Certificate of Eligibles for the position. At the time of her selection, C1 was an Investigative Assistant and Primary Non-Drug Evidence Custodian at the Agency’s, San Jose Regional Office. As the Primary Non-Drug Custodian for the San Jose office, C1’s duties included receiving, distributing, and destroying non-drug evidence and maintaining the non-drug evidence database. In April 2014, C1 received a certificate for her completion of the Non-Drug Evidence Custodian School at the Agency’s Academy in Quantico, Virginia. As noted above, at the time of selection, Complainant was a Recruitment Assistant at the Agency’s Dallas Field Division. The record indicates that her application did not list any work experience with inventory of non-drug or drug evidence or maintenance of non-drug or drug evidence. Her application indicated that she was interested in a Personnel Liaison Specialist position. During her sworn deposition, Complainant admitted that she did not have any experience with the processing of drug or non-drug evidence, she had no experience with maintaining a drug vault, and she had no previous training regarding managing drug or non-drug evidence. The Selecting Official was A1, the Laboratory Director. According to A1, the selection process included interviews conducted by himself, A2, his Associate Laboratory Director, and A3, his Laboratory Administrative Officer. Both Complainant and C1 were interviewed for the position. Complainant stated that she was interviewed by A1 and A2 and during the interview they discussed the position, her resume, her experience, and completed a tour of the laboratory area, and that there were no comments or questions pertaining to her sex, prior EEO activity, or age. 20190034203 A1 stated that the factors considered in making the selection included experience, history with inventories or working with evidence, attention to detail, work ethic and a positive attitude. Although he was aware of Complainant’s sex, he maintained that he was not aware of her age or previous EEO activity. Finally, A1 stated that Complainant was not selected because there was a better candidate, C1, who was also a female, and who had experience with non-drug evidence, working with inventories, and maintaining a drug vault for another office. Regarding claim 2, C2 (female, over 40, no prior EEO activity) was the selectee for the position. The position was located at the Dallas Field Division. The duties of the PLS 2016 position included serving as a liaison between Division management, employees and Headquarters Human Resources Personnel; working closely with Division management and various Human Resources Personnel to facilitate efficient recruitment, retention, movement and general welfare of staff; and providing advice on all programs pertaining to such areas as employment orientation; pay; incentive awards; training; retirement benefits; performance programs; leave administration; promotion; insurance; health plans; employee benefits’ attrition; and position management. Both Complainant and C2 were on the Merit Promotion Certificate of Eligibles list. The Agency noted C2’s application revealed that she had 13 years of experience within the Agency working in various offices and positions including: Special Operations Program Assistant at the El Paso Intelligence Center; Administrative Support Specialist at the Southern Cone Region in Lima, Peru; and as an Intelligence Investigative Assistant at the Waco Resident Office. Prior to working with the Agency, she worked 8 years as a Human Resources Assistant with the Department of Defense. The record indicates that some of the duties C2 performed as a Human Resources Assistant were similar to the duties of the PLS 2016 position, for example, counseling and advising new employees regarding life insurance, health benefits, and Thrift Savings Plans; assisting employees with pay and travel entitlements; resolving pay issues for personnel by working closely with customer service at the National Finance Center. The Agency indicated that Complainant’s duties as a Recruitment Assistant did not include advising employees on all programs pertaining to pay, incentive awards, training, retirement benefits, performance programs, leave administration, promotion, insurance, health plans, employee benefits, attrition, or position management. Complainant stated that, as a Recruitment Assistant, she had been involved with some aspect of employee orientation pertaining to applicants for Special Agent positions and had advised applicants about their employee benefits; however, she had never processed pay and had no experience with leave administration, training, promotions, incentive awards, or performance programs. B1, then Special Agent in Charge of the Dallas Field Division, was the selecting official for this position. B1 assigned B2, then Acting Assistant Special Agent in Charge over the Administrative Unit and Complainant’s second level supervisor, and S1, Complainant’s direct supervisor, who was the Administrative Officer, to conduct the vetting process. At the time of the selection, B1 stated that he was not aware of Complainant’s age or prior EEO activity, and that these matters were not discussed with B2 or S1. 20190034204 B1 stated that the selection decision was made based on the vetting process and recommendations of B2 and S1. Both B2 and S1 recommended C2 for the position, and B1 agreed with their recommendation. B2 stated that while in his capacity as Acting ASAC he may have heard something in passing about Complainant’s prior EEO activity, but he was not specifically aware of her EEO participation. B2 stated that there were three candidates considered; one decided to remove herself from consideration, and the other two, C2 and Complainant, were interviewed. B2 stated that, as part of the vetting process, he spoke with past supervisors of both C2 and Complainant. B2 conducted the interviews of both C2 and Complainant. During the interviews, both C2 and Complainant were asked the same questions. In addition to the interviews, B2 sought the recommendation of S1, who was the Administrative Officer, and direct supervisor of Complainant. B2 stated that age and prior EEO activity were not factors in his decision. C2, he stated, had previous experience in the work required for the position, and was more qualified for the position and interviewed better than Complainant. S1 stated that B2 sought her input regarding the selection for the PLS 2016 position. She maintained that she was not aware of Complainant’s age, but indicated that Complainant, when things did not go her way, would tell her and other people within the Division that it was because she had filed this complaint or that complaint. S1 maintained that she was not aware of Complainant’s prior EEO activity, and that in making her recommendation she reviewed the applicant and interview packages of C2 and Complainant. S1 stated that Complainant’s age and prior EEO activity were not considered in her recommendation of C2 or discussed between her and B2 during their assessment of the applicants’ qualifications. S1 determined that C2 was the best qualified for the position because her qualifications and experience were more relevant to the position than Complainant’s qualifications. S1 stated that Complainant’s position as a Recruitment Assistant was not a Human Resources position and dealt solely with the recruitment of applicants - not benefits or personnel actions. C2 had the experience and knowledge for the position and had worked in personnel. Regarding claim 3, C3 (female, no prior EEO activity) was selected for the 2017 PLS position. The PLS 2017 position was located at the Dallas Field Division. Complainant used the same application she submitted for the PLS 2016 position for the PLS 2017 position, except she wrote under the first paragraph describing her duties as a Recruitment Assistant that she was “helping out…as a Personnel Liaison Specialist for the Dallas Field Division since September 19, 2016.†At the time of her selection, C3 had been working for the Agency for 26 years in various positions in both domestic and foreign offices. Her work history indicated that she has worked approximately 9 years as an Administrative Support Specialist in Mexico, and 16 years assisting various groups within the New Orleans Field Division. Both Complainant and C3 were listed on the Merit Promotion Certificate of Eligibles for the position. The selecting official was D1, the Special Agent in Charge of Dallas Field Division. D1 reported to the Dallas Field Division in June 2016, approximately 7 months prior to the January 2017 selection for this position. 20190034205 D1 was aware of Complainant’s prior EEO activity, in his capacity as SAC over the Dallas Division, he also stated that he may have known about her previous EEO activity because she had reported her EEO participation to a member of his executive team. For the selection process, D1 had his Administrative Officer, D2, establish an interview panel and he stated that he relied on their recommendation to make his decision. D2 stated that he prepared the questions used by the panel members during the interviews. Complainant and C3 were both interviewed for the position by the three panel members. D2 stated that after the panel members made their recommendation, C3’s name was sent to D1 for his concurrence. The three panel members were P1, the Group Supervisor, P2, a Special Agent, and P3, a Special Agent. The three panel members used a rating scale from 1 - 5 to individually score the candidates’ interview and applications, with 5 being the highest. P1 scored C3 at 5.0; P2 scored her at 5.0; and P3 scored her at 4.88. P1 scored Complainant at 3.75; P2 scored her as 4.4; and P3 scored her as 4.25. P1 found that C3 was the superior candidate based on her answers to the questions, her application, and her background and experience. Both P2 and P3 stated that they rated C3 higher than Complainant because of her work experience overseas dealing with personnel matters. All three Panel Members stated that had no knowledge of Complainant’s prior EEO activity. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment, dated July 31, 2018, and issued a decision without a hearing on February 20, 2019. 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. The AJ, among other things, found that Complainant did not identify any material facts in dispute. According to the AJ, Complainant presented several speculative assertions but did not dispute the material facts. For example, Complainant did not establish that her qualifications were plainly superior to the selectees’ based on the criteria the Agency utilized. Furthermore, the AJ noted Complainant’s speculation that A1, the selecting official for claim 1, was aware of her prior EEO activity because it was generally discussed around management; however, the AJ noted that there was no evidence establishing that he was aware. Further, the AJ noted that there was also no dispute that Complainant’s prior EEO activity occurred more than 13 years earlier and therefore was too remote in time to support a claim of reprisal. Complainant, the AJ also noted, did not dispute that as to some of the bases alleged, Complainant and the selectees were in the same protected class. On appeal, Complainant argues that genuine issues of material facts exist and judgment as a matter of law was inappropriate in this case. As she did in her opposition to the Agency’s motion, Complainant argued that she can demonstrably show better qualifications both in experience and education thereby establishing the Agency’s actions were pretextual. 20190034206 Furthermore, because the selecting officials have admitted to knowledge of Complainant’s sex and prior EEO activity, she maintains that, at the very least, an inference of non-selection on the basis of her protected classes may be drawn by a finder of fact. ANALYSIS AND FINDINGS 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 . . .â€); 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s and Agency’s factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,†and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). AJ’s Issuance of a Decision Without a Hearing We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact†is one that a reasonable judge could find in favor for 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 “material†fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We have carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 20190034207 Here, Complainant, in her opposition and on appeal argued that she was better qualified for the positions, and that her age and prior EEO activity were known by various officials involved in the selection decisions. For reasons that will be discussed below, we find that the AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. To prevail in a disparate treatment claim, 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 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 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 Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions were discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.†Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sep. 14, 2017). Assuming, for purposes of this decision only, that Complainant established a prima facie case of discrimination based on her sex, age and previous EEO activity, like the AJ, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions as were set forth in detail above. We also find no evidence of pretext. We find that Complainant simply has not provided any evidence that raises a genuine issue of material fact that either her sex, age, or prior EEO activity played any role in the non-selections. At the outset, we note the obvious fact that C1, C2, and C3 are all women, like Complainant; therefore, we find no evidence that Complainant’s sex played a role. Regarding her previous EEO activity, the record indicates that this activity took place years before the non-selections. Even if various officials were aware of her EEO activity, Complainant did not point to any evidence that raises a genuine issue of material fact that they took discriminatory actions based on that knowledge.2 In other words, knowing about the activity is not the same as taking discriminatory actions because of that knowledge. In addition, we note that there is only a 3-year age difference between Complainant and C2. 2 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. 20190034208 Finally, like the AJ, we do not find that Complainant raised a genuine issue of material fact with respect to her qualifications for the three positions that would warrant a hearing. Complainant, like C1, C2, and C3, were found to be qualified for the positions at issue. The Commission has previously held that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Chara S. v. EPA, EEOC Appeal No. (Feb. 20, 2020). We find no such unlawful factor here. One way that Complainant could show pretext is by establishing that the alleged disparities in qualifications between her and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [her] for the job in question.†Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Complainant did not meet that standard in this case. With respect to claim 1, Complainant did not have experience with maintaining a drug vault, or managing inventories involving drug or non-drug evidence. With regard to claims 2 and 3, the record indicates that Complainant did not have the full range of personnel experience that management officials were seeking and that C2 and C3 possessed. Upon careful review of the AJ’s decision and the evidence of record, as well as the arguments on appeal, we conclude that the AJ correctly determined that Complainant did not establish the existence of a genuine issue of material fact with regard to her non-selection claims. CONCLUSION Accordingly, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). 20190034209 All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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†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. 201900342010 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 August 27, 2020 Date
