Doris Rountree v. Department of the Treasury (U.S. Customs Service) 07A00015; 01A02650 July 17, 2001 . Doris Rountree, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (U.S. Customs Service), Agency. Appeal No. 07A00015 Appeal No. 01A02650 Agency No. 97-2230 Hearing No. 160-98-8087X DECISION INTRODUCTION On February 8, 2000, the Department of the Treasury (U.S. Customs Service) (hereinafter referred to as the agency) filed a timely appeal from the December 30, 1999, decision of the EEOC Administrative Judge (AJ) in the above-referenced hearing concerning the complaint of Doris Rountree (hereinafter referred to as complainant). On February 20, 2000, complainant filed a timely appeal on the same matter. Complainant alleged unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The appeals are timely filed (see 29 C.F.R. § 1614.402(a)) and are accepted in accordance with 29 C.F.R. § 1614.405. For the reasons that follow, the decision of the Administrative Judge is REVERSED, and the agency's decision is AFFIRMED. ISSUES PRESENTED The issues presented in this appeal are (a) whether the AJ properly imposed sanctions on the agency, and (b) whether the AJ properly found that the agency discriminated against complainant on the bases of national origin (Panama) and sex when she was not selected for the position of Senior Inspector, GS-11, in April 1997. BACKGROUND Complainant filed her formal complaint on June 4, 1997, alleging discrimination based on national origin, sex, and reprisal for prior EEO activity with regard to the non-selection referenced above.<1> Following an investigation, complainant requested a hearing, and a hearing was held on November 15, 1999. The AJ issued a decision on December 30, 1999, finding discrimination on the bases of sex and national origin, from which the agency and complainant have appealed. At the time of her complaint, complainant worked as an Inspector, GS-9, in San Juan, Puerto Rico. In December 1996, she applied for one of four positions posted for Senior Inspector, GS-11, to be filled according to the agency's merit promotion process as set out in the collective bargaining agreement (CBA) and the agency's regulations, copies of which are contained in the record. Complainant's was one of 33 applications, and each was reviewed individually and separately by a three-member panel according to a crediting plan.<2> From the information in each application and the written responses to five criteria (knowledge, skills, and abilities (KSAs)) the panel members evaluated each applicant independently on separate rating sheets. Of the five criteria, the primary KSAs were (a) the ability to apply agency laws and regulations, (b) analytical ability, and (c) oral communication; each primary criterion was worth a maximum of six points. The two secondary KSAs were the abilities (d) to plan and organize work and (e) to communicate in writing; each one had a maximum value of four points. Points were assigned at three levels, i.e., 6.0 or 4.0 for excellent, 4.5 or 3.0 for good, and 3.0 or 2.0 for moderate. The highest possible score was 26 points, after averaging the three assessments. According to the testimony of one of the panel members, for each KSA, an applicant was expected to (i) demonstrate his/her knowledge of the KSA, (ii) how s/he applied the criteria, and (iii) how s/he had used that knowledge for instruction and/or educational purposes. An applicant who demonstrated that she possessed the five KSAs, explained how she had applied the five KSAs, and showed how she had used the five KSAs in the workplace would be given a full score of 6.0 or 4.0. After evaluation by the panel members, the three rating sheets were sent to a Personnel Management Specialist (PMS) in Washington, D.C., who averaged the scores to create a selection register, or best qualified list, consisting of the eight highest scoring applicants. For each applicant, the PMS added up the three rating scores made by each panel member and divided the total by three; she made no decisions or evaluations herself. The eight highest-ranking applicants were placed on the selection register, and the selection register was sent to the selecting official, the Area Port Director (SO), for her selection. Complainant was not on the selection register, having scored 18.33 points, while the scores of the eight best qualified candidates ranged from 19.17 to 23.50 points. The selectees scored 23.50, 22.50, and 22.17 points, and one position was filled through alternative placement. Immediately prior to the hearing, the AJ issued Orders on November 8, 1999, which, inter alia, listed the approved witnesses and asked the agency to: produce the individual(s), if not already named, who was responsible for deciding how the Best Qualified List was determined and who made the List. Orders, November 8, 1999, p. 1. At the hearing, agency counsel stated that the process of constructing the best qualified list was set out in documents in the record and suggested that, should the AJ desire supplemental testimony on the process, the SO, as Area Port Director, could testify in response to the AJ's order.<3> In response to the AJ's identification of the PMS, he stated further that, while the PMS prepared the list upon receipt of the panel members' rating sheets, she acted pursuant to established procedures and made no qualitative decisions and that her affidavit in the record sufficiently described her activities. He stated that the PMS was presently available by telephone for any testimony and that she was not asked to travel from Washington, D.C., to Puerto Rico, because she was not a critical witness, her affidavit explained her activities, and her testimony would be of limited utility compared to the time and expense of her travel. AJ's Decision In his decision, the AJ imposed sanctions on the agency for its failure to produce the PMS in person in response to his order, even while acknowledging that the selection procedures were fully set out in record documents. The AJ criticized agency counsel because "he made no effort to secure her presence at the hearing despite my order to produce her" and for the agency's failure to seek permission for telephonic testimony.<4> (AJ's Decision, p. 6). The AJ contended that, because the selection register was prepared by the PMS, she should have been available for his questions and a determination of her credibility. The AJ imposed a sanction upon the agency: for violating my order, all evidence relating to [the PMS], including her affidavit, will be stricken from the record [including] all documentary evidence to which [the PMS] would have been competent to testify, including Section 26 of the Merit Promotion Plan and the agency's collective bargaining agreement.... AJ's Decision, p. 8. Having excluded all documentary evidence about the selection process and rejecting the SO's testimony as to the procedures, the AJ went on to find that the agency discriminated against complainant on the bases of her national origin and sex, because it could not explain the selection process or why complainant's name was not on the final list. He found that the agency did not retaliate against her, in that, she failed to show the causal link or nexus between her March 1995 EEO activity and her non-selection in this matter. In remedy, he ordered that complainant be placed in the position of Senior Inspector, GS-11, with back pay and benefits, including interest, and that the agency post a notice of non-discrimination. Appeals The agency has filed an appeal from the AJ's decision, arguing that the AJ erred when he imposed a sanction on the agency and that the agency did not discriminate against complainant. The agency asserted that it complied with the AJ's order, that is, the AJ never identified the PMS by name, and the agency produced the SO, who, in conjunction with documentary evidence in the record, was the most knowledgeable person on how the best qualified list was prepared. The agency noted that, in addition to describing how the list was prepared and who prepared it, the SO was able to testify about the Merit Promotion Plan, its application in the instant matter and on previous occasions, the formulation of the plan with the union and the union's oversight of the merit promotion process, and the reasons for choosing the selectees. The agency asserted that, in keeping with the AJ's interest in the promotion process, it also produced two members of the review panel (the third having retired). In addition, the agency points out that, although it had identified the PMS by name in January 1999, when the agency sought her testimony by telephone, nevertheless the AJ did not identify her specifically in the November 8, 1999, order. Instead, the agency contends that the AJ merely described the information he desired, leaving it to the agency to identify the witness. Because the agency produced the SO to discuss the procedures already in the record, the agency argued that it had complied with the AJ's instructions. With regard to the merits of the AJ's decision finding discrimination, the agency argued that complainant was not on the best qualified list and could not be selected for the position. In support, the agency noted that the members of the review panel explained the rating system and why complainant received lower scores. Specifically, the agency stated that the testimony showed that complainant failed to demonstrate all three aspects (knowledge of, application of, and utilization) of the criteria in her application and her response to the criteria. Complainant also has filed an appeal, arguing in support of the imposition of sanctions and the AJ's finding of discrimination.<5> As to the sanctions, complainant contends that the agency was properly punished for failing to abide by the AJ's hearing instructions and produce the PMS. She further argues that, when the AJ drew an adverse inference against the agency, that he was making credibility determinations in support of his decision on the merits finding discrimination. Complainant also seeks additional remedies, specifically, transfer from Puerto Rico. ANALYSIS AND FINDINGS Sanction Initially we consider whether the AJ properly drew an adverse inference and imposed sanctions on the agency when it failed to produce the PMS in person. The Commission's regulations afford broad authority for the conduct of hearings by AJs. 29 C.F.R. § 1614.109 et seq. The hearing is a part of the investigative process and completes development of a full record by allowing the parties to explain and supplement the record and, in certain instances, to examine and cross-examine witnesses. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEOC MD-110), Chapter 7, Sections I-III (November 9, 1999). An AJ's regulation of the hearing process includes the authority to, inter alia, order the attendance of witnesses. See Comer v. Federal Deposit Insurance Corporation, EEOC Request No. 05940649 (May 31, 1996). When a complainant or agency fails to comply with an AJ's order, an AJ may take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). In such circumstances, an AJ may: (1) draw an adverse inference in favor of the non-complying party; (2) consider the missing information to be favorable to the non-complying party; (3) exclude other evidence offered by the offending party; (4) provide a summary disposition in favor of the non-complying party on some or all of the issues without a hearing; and (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. Before sanctions are imposed, however, the Commission requires that the AJ issue an order to the offending party that makes clear that sanction(s) may be imposed and the type of sanctions that could be imposed for failure to comply with the order unless the party can show good cause fot its action. EEOC MD-110, 7-7, fn. 4 (the AJ “must issue a notice to show cause to the party for an explanation why the sanction should not be imposed and provide an opportunity to cure the noncompliance before imposing the sanction.”). In the matter before us, we find that the AJ acted improperly in imposing a sanction on the agency without some form of prior notice and an opportunity for the agency to show good cause. In addition, we find that the AJ's order was sufficiently vague so as to justify confusion on the part of the agency, that the extent and severity of the sanction was out of line to the non-compliance, and that under the circumstances of this case, the agency showed good cause and its actions were adequate to comply with the AJ's order. The record shows that the AJ did not give any notice of possible sanctions to the agency in any of his orders or other communications, nor did he suggest that he would impose sanctions when he learned at the hearing that the PMS would only be available by telephone. The Commission requires that an offending party be provided appropriate notice of possible sanctions, i.e., a notice to show cause and what type of sanctions might be imposed. EEOC MD-110, 7-7, fn. 4; see DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000). As a result of the AJ's failure to issue a notice to the agency, it was not afforded an opportunity to explain its actions and reasons therefor. We also find that the AJ's order was vague and ambiguous, in that, it is unclear whether the AJ sought a witness to describe the process for determining who came to be listed on the selection register, if he sought a witness to testify about the ministerial, physical act of compiling of the list, or whether he expected someone to state the reasons for selection decisions. Given that all steps in the selection process was fully set out by documents in the record and, most significantly, that the PMS's function was simply ministerial, it was not unreasonable for the agency to conclude that the AJ sought testimony from the decision-makers. See pp. 2-3, supra. Consequently, the agency presented two members of the review panel and the SO. Inasmuch as an explanation of the process was already available to the AJ, it is not clear what material testimony the PMS could provide.<6> Even if the AJ had followed proper procedures, we find that the AJ's decision to strike all evidence describing the selection process, including the selection plan and the collective bargaining agreement contained in the record, was too extreme under the circumstances of this case. The PMS' testimony would have been limited to the merely ministerial mathematical additions and divisions that she performed to compile the best qualified list. She was not the custodian of the subject documents, she did not have a role in implementation or oversight of the selection process, as incorrectly indicated by the AJ, and she had no authority or control concerning the collective bargaining agreement. If the AJ sought an explanation of how the best qualified list was determined, that information was contained in the record. If the AJ was looking for authentication of the documents in the record, the AJ had available the SO and two members of the review panel. If the AJ wanted to know who made the best qualified list, he already knew that the PMS calculated the results of the review panels' evaluations. If he sought verification from the PMS that she performed her mathematical computations according to the agency's selection procedures, the parties had already stipulated to that fact. Finally, if the AJ, in fact, needed to ask the PMS any questions, she was available to him by telephone. In our view, the agency's actions were adequate to comply with the AJ's order. Given the lack of clarity in the AJ's order, the agency presented the SO and the review panel members for testimony at the hearing. In addition, if the AJ wanted to speak to the PMS, agency counsel stated she was available by telephone. The SO and review panel members were available, in addition to documents already in the record, to explain “who was responsible for deciding how the Best Qualified List was determined and who made the List.” For the above reasons, we vacate the AJ's sanction and turn to consideration of complainant's claim of discrimination based on sex, national origin, and in reprisal for prior EEO activity when she was not selection for the position at issue. Claim of Discrimination Generally, discrimination claims alleging disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Complainant must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency offers rebuttal to complainant's inference of discrimination by articulating a legitimate, nondiscriminatory reason for its action(s). 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 burden to persuade the fact finder by a preponderance of the evidence that the reasons offered by the agency were not the true reasons for its actions but rather were a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency articulates a legitimate, nondiscriminatory reason for its actions, we may presume a prima facie case and proceed directly to the third step to determine whether complainant has demonstrated pretext. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983). In the matter before us, having vacated the AJ's sanctions and considered the entire record, we find that the agency articulated a legitimate, nondiscriminatory reason for not selecting complainant. Complainant's cumulative score of 18.33 was not sufficient for inclusion on the best qualified list, that is, her score was not among the eight highest scores, which ranged from 19.17 to 23.50 points. For this reason, she was not placed on the best qualified list for selection. We note also that the lowest-scoring selectee 22.17 points, ranked several points above complainant. In addition, the review board panel members testified that, in general, complainant's application and responses to the KSAs were incomplete, in that, she only addressed the first aspect–to show that she had knowledge, and did not address how she applied each KSA and how she had used that knowledge.<7> See pp. 2-3, supra. We turn now to consideration of whether the complainant has demonstrated pretext, that is, that the agency's reason was not its true reason or that its actions were based on her sex or national origin. In her testimony, complainant suggests that selections and other employment decisions revealed preferences for persons native to Puerto Rico.<8> Complainant failed to present any specific testimony or evidence in support of this general assertion, and nothing in the record supports this claim. We find that neither complainant nor the record demonstrates that the agency's reasons were a pretext for discrimination. We find therefore that the agency did not discriminate against complainant based on sex and national origin. To address her claim based on reprisal, following the McDonnell Douglas paradigm, complainant must establish a prima facie case showing that (1) she engaged in prior protected activity; (2) the agency was aware of the protected activity; (3) subsequently she was subjected to adverse treatment by the agency; and, (4) a nexus exists between the protected activity and adverse action. Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Department of Veteran Affairs, Request No. 05960473 (November 20, 1997). Even if complainant could establish a prima facie case, as stated above, the agency articulated a legitimate, non-discriminatory reason that complainant was unable to show was pretextual. We find therefore that the agency did not discriminate against complainant based on reprisal. CONCLUSION Accordingly, the AJ's decision is REVERSED and a finding of no discrimination is hereby entered with respect to complainant's nonselection for the Senior Inspector position. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: Frances M. Hart Executive Officer Executive Secretariat July 17, 2001 ___________ Date 1In her complaint, complainant also alleged discrimination with regard to awards, training, and overtime, but the AJ dismissed these issues, finding that they were not raised during counseling, not like and related to the non-selection, and not part of a continuing violation. For this reason, they are properly dismissed. 29 C.F.R. §1614.107(a)(2). 2A union official was present at all times and certified that the review process was procedurally correct. 3On appeal, complainant suggests that the agency agreed that the PMS was the person who best met the AJ's order. A clear reading of the hearing transcript at page 11 shows that the agency was responding only to the AJ with regard to the correct first name of the PMS. 4In “Hearing Procedures” published earlier, the parties were informed that requests for telephonic testimony must be in writing. The hearing in this matter had been scheduled for March 1999, prior to which agency counsel had sought permission from the AJ for telephonic testimony from the PMS. Apparently, the AJ believed that his Orders in November, supra, were a response to counsel's request in January, even though the AJ did not identify the PMS by name or function in his Orders. 5Complainant has addressed two personal letters to the Commission complaining of matters not within the scope of the instant matter. Complainant is advised that, if she believes that any actions by the agency were the result of discrimination, she should immediately contact an EEO counselor. 29 C.F.R. § 1614.105 et seq. If complainant seeks EEO counseling regarding these claims within 15 days of the date she receives this decision, the date complainant filed her appeal shall be deemed the date of initial EEO contact, unless she previously contacted a counselor regarding this matter, in which case the earlier date should serve as the EEO counselor contact date. Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998). Complainant is also advised that matters discussed during settlement negotiations, even in the presence of an AJ, are confidential and not part of the record of this proceedings. 6We note that the AJ stated that he “had some questions to ask her...and I have the right to call any witness I deem is relevant for this hearing.” Tr. p. 15. At no time, however, did he explain what inquiries he had for the PMS or what information he was lacking. Further, it is unclear why, since the AJ knew the identity of the PMS, he did not specifically request her attendance in his order if he wanted to ask her some questions. 7In his decision, the AJ stated that the SO “testified that had Complainant's name appeared on the register, Complainant could have been among the four successful candidates.” Tr. p. 13. Reliance on that statement is misplaced as it was in response to a purely hypothetical question. 8Complainant also asserted that employment decisions were based upon familial connections. Favoritism toward persons because of their family connections, without more, is not within the purview of Title VII.