U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shayna P.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 0120141506 Hearing No. 570-2012-00415X Agency No. HS-11-FEMA-00220 DECISION On March 7, 2014, Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's February 7, 2014 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency's final order, in part. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly decided the case without a hearing; and (2) whether the AJ properly determined that the preponderance of the evidence in the record did not establish that Complainant was subjected to discrimination based on race, sex, and/or disability. BACKGROUND Factual Background At the time of events giving rise to this complaint, Complainant worked as a GS-9 Human Services Specialist at the Agency's Maryland National Processing Service Center (MD-NPSC) in Hyattsville, Maryland. Complainant has a medical degree, with a specialty in psychiatric medicine. As of 2011, Complainant had completed her residency in psychiatry and a fellowship in community addiction and was working towards board certification in psychiatry. In February 2010, the Agency's Administrator established the Office of Disability Integration and Coordination (ODIC) and named the ODIC Director (D1). Complainant stated that because the ODIC was new and had a limited office, it initially relied on detailees, interns, and fellows to establish the Office. According to Complainant, after an interview, D1 selected her for a six-month detail to the ODIC as a Disability Specialist, with initial duties to review and research existing and new disability laws. D1 indicated that Complainant's position title while on detail was Program Assistant. Complainant stated that two other MD-NPSC employees were initially detailed to the ODIC: an Office Manager (O1) and an Administrative Assistant (A1). Complainant's detail subsequently was extended; she was detailed to the ODIC for a total of 12 months, from March 27, 2010, until March 27, 2011. Complainant is an African-American female. Complainant self-identified as having a speech impediment, in that she stutters. According to Complainant, daily verbal communication is a part of her job duties, so she must focus on her words carefully before speaking. Complainant asserted that her stutter is exacerbated during stressful situations and that she sometimes must write down what she wants to say before speaking. Complainant alleged that D1 was aware of her stutter because Complainant mentioned it to her after D1 made a negative reference about Complainant's speech for the Substance Abuse Mental Health (SAMSHA) conference. Complainant stated that, in September 2010, D1 encouraged her to take the lead at some meetings to help relieve her anxiety about public speaking. D1, however, denied knowledge that Complainant has a disability. Complainant stated that, in October 2010, O1 told her that D1 had received funding to hire five persons. Complainant asserted that in February 2011 she, O1, and A1 were offered the choice of being directly hired at their current grade levels or competing for their positions at the GS-12 level. Complainant decided to apply competitively for the remaining three vacancies. Complainant averred that D1 promised her that if Complainant made the certification list when the positions were posted, she would be hired. D1 denied promising Complainant that she would get a position if she competed. The record contains a February 2, 2011, two-page letter of recommendation from D1 for Complainant. In the letter, D1 described Complainant's contributions to the ODIC as "exemplary," describing in detail Complainant's accomplishments working with emergency management partners and stakeholders to integrate planning or the access and functional needs of people with disabilities in preparedness, response, recovery, and mitigation. The record contains an unidentified Workforce Profile.2 Report of Investigation (ROI) at 371-94. Of the more than 300 total employees listed, approximately 70 percent of the employees were female, approximately 54 percent of the employees were African-American, and approximately 41 percent of the employees were African-American and female. Of the 47 employees listed as holding positions at the GS-11 level or higher, approximately 51 percent of those employees were female, approximately 32 percent were African-American, and approximately 19 percent were African-American and female. The record contains the Agency's Merit Promotion Plan, which states that rating interview panelists "may be from the Office of Personnel or subject matter specialists who must be at an equivalent or higher grade level than the position being filled." Selection for Position 1 Complainant timely applied for the position of Disability Integration Communication Specialist in the ODIC at Agency Headquarters in Washington, D.C., GS-0301-11/12, Announcement #: MG-2011-81472-VMJ-479689 (Position 1). Complainant alleged that Position 1 was essentially the same as the position she held while on detail. The position description indicates that Position 1 involves providing information management and communications support to disaster response and recovery operations and programs on behalf of the ODIC. According to the position description, the major duties are: (1) serving as organizational lead for ensuring all Agency personnel have access to critical information about ODIC operations; (2) serving as a subject matter expert for developing, producing, monitoring, and maintaining materials, products, and services in compliance with the Rehabilitation Act, the Americans with Disabilities Act of 1990 (ADA), as amended, and other accessibility requirements; (3) maintaining and developing the ODIC stakeholders contact database to support disaster operations; and (4) planning, managing, and implementing special events with a particular focus on ODIC information management and communication strategies. For Position 1, the position description defines specialized experience as experience developing, producing, monitoring, and maintaining materials, products, and services in compliance with the Rehabilitation Act, the ADA, and other accessibility requirements and defines relevant education as graduate level education demonstrating the knowledge, skills, and abilities necessary to do the work of the position. For consideration at the GS-11 level, the position description states that candidates must possess one full year of experience equivalent to the GS-9 level, a Ph.D. or equivalent doctoral degree or three full years of progressively higher level graduate education leading to such a degree, or a combination of experience and education. For consideration at the GS-12 level, candidates must possess one full year of specialized experience equivalent to the GS-11 level. According to the position description, the knowledge, skills, and abilities for Position 1 were: (1) knowledge of Agency policies, procedures, and practices, regulations, directives, laws, and policies and procedures governing disability inclusion and community integration initiatives to effectively perform designated strategic planning, field support, training, and related responsibilities, including knowledge of Sections 504 and 508 of the Rehabilitation Act and the ADA; (2) skill in providing, planning, and implementing emergency preparedness communications programs; (3) ability to provide technical advice to management and operational personnel regarding technical database or technology issues; and (4) knowledge and experience in disaster and emergency management programs. Complainant stated that on July 6, 2011, she was notified that her application was being referred to the selecting official. Complainant, however, was not selected for an interview. D1 stated that she was the selecting official for Position 1. According to D1, there were 162 applicants referred for consideration. D1 stated that she did not select Complainant for an interview because she did not list experience in her application package in the following seven areas of the job description: 1. Serves as a specialist for the office on matters relating to developing, producing, monitoring and maintaining materials, products and services that are compliant with Section 504 and 508 of the Rehabilitation Act, as Amended in 1998, the Americans with Disabilities Act of 1990, as amended in 2008 and other accessibility requirements. 2. In ensuring appropriate accessibility to critical program planning, operational support and other emergency management information impacting disaster response and recover operations, the employee is responsible for researching and presenting background information and options relating to appropriate technologies that will best meet internal and external needs and provide the most reliability and accessibility during emergency situations. 3. The employee's work will include presenting management with options relating to the development and presentation of ODIC information and materials on the ODIC webpage, social media and Share Point accounts. 4. The employee is additionally responsible for continuously assess emerging accessible technologies that might enhance access to critical emergency information, including in such assessments consideration of the fiscal impact of each option. 5. Responsible for the ongoing maintenance and continuing development of the ODIC stakeholder contact data base to support disaster operations. 6. Determines, for all information to be made available through the use of accessible technology, the appropriate data base or other format/approach to best present and capture information. 7. Utilizes advanced knowledge of various software and presentation programs in creating accessible documents. ROI at 238. D1 asserted that she chose the selectee (S1), a Caucasian male with a disability, because his application described experience in all areas of the job description and he scored at the top of all interviewees. O1, who is a GS-11 employee and participated in the interview panel for Position 1, said that S1 "did well in his interview but didn't meet all of the qualifications for the position." ROI at 270. D1 said that there was nothing wrong with O1 participating as a voting interview panelist for the selection for Position 1. The record contains S1's application for Position 1, which consists of a resume that is less than two pages long. According to S1's application, his most recent experience was a Program Director in the private sector, where he managed a community emergency preparedness program, provided training, answered inquiries from the public, and frequently assisted with disability initiatives. ROI at 448. S1's application states that he had previously worked as a Systems Analyst and as a Senior Regulatory Examiner. ROI at 448-49. According to the record, S1's application does not indicate any experience that is directly related to areas 1, 2, 4, 5, 6, or 7. Id. The record does not contain the applications of any of the other candidates who were interviewed for Position 1. The record contains Complainant's 21-page application package for Position 1. In her application, Complainant indicated that the lowest grade she would accept was GS-11. In describing her work with the ODIC, Complainant described her tasks in great detail, including the following descriptions that appear to directly address the seven areas that D1 indicated Complainant did not highlight in her application: * Served as an office lead, specialist and subject matter expert for the office on matters ... relating to developing, producing, monitoring and maintaining materials, products and services that are compliant with Section 504 and 508 of the Rehabilitation Act, as Amended in 1998, the Americans with Disabilities Act of 1990, as amended in 2008 and other accessibility requirements. * ... Provided information management and communications support to recovery programs and operations on behalf of the Office of Disability Integration and Coordination (ODIC).... * Developed and maintained a contact database of ODIC partners to support disaster operations.... * Researched and recommended appropriate technologies (i.e. Integrated Public Alert and Warning System (IPAWS)) that will best meet the internal and external needs and provide for the most reliability and accessibility during emergency situations.... ROI at 419-22. In answering a question about whether she had experience in researching and recommending appropriate technologies that will best meet the internal and external needs and provide for the most reliability and accessibility during emergency situations, Complainant stated, "Yes, I have experience in researching and recommending appropriate technologies that will best meet the internal and external needs and provide for the most reliability and accessibility during emergency situations." ROI at 445. Complainant also included D1's February 2, 2011, letter of recommendation as part of her application package. ROI at 435-36. Selection for Position 2 Complainant timely applied for the position of Disability Integration Specialist in the ODIC at Agency Headquarters in Washington, D.C., GS-0301-12, Announcement #: MG-2011-81470-VMJ-47933 (Position 2). Complainant alleged that Position 2 was substantially the same as the position she held while detailed to the ODIC. The position description indicates that Position 2 involves ensuring effective disaster response and recovery interface and coordination of ODIC programs and initiatives with regional Agency personnel and with the National Council on Disability. According to the position description, the major duties are: (1) providing advice, guidance, and information regarding a variety of emergency management activities as they relate to ODIC disaster response and recovery programs and responsibilities; (2) developing and implementing policies and procedures for providing accommodations in compliance with the ADA, the Rehabilitation Act, and other applicable laws; (3) participating in developing and implementing Standard Operating Procedures that are inclusive of the needs and requirements of people with a variety of disabilities and ensuring equal access to people with disabilities; and (4) developing reporting mechanisms and processes for the regions in support of disaster response and recovery operations in order to ensure the needs of individuals with disabilities are fully addressed in accordance with Section 689 of the Post-Katrina Emergency Management Reform Act of 2006 and Section 513 of the Homeland Security Act. For Position 2, the position description defines specialized experience as experience providing guidance and strategies to integrate and coordinate emergency management efforts to meet the needs of all citizens, including people with disabilities and others with access and functional needs. For consideration at the GS-12 level, candidates must possess one full year of specialized experience equivalent to the GS-11 level. The position description defines the knowledge, skills, and abilities for Position 2 as: (1) knowledge of Agency policies, procedures, and practices, regulations, directives, laws, and policies and procedures governing disability inclusion and community integration initiatives to effectively coordinate ODIC programs and initiatives with Agency personnel; (2) skills in providing, planning, and implementing emergency preparedness technical assistance, outreach, and liaison activities during disaster response and recovery operations with Agency Regions, among various government agencies, and with outside organizations; (3) ability to provide technical advice to management and operational personnel regarding issues concerning people with disabilities in pre- and post-disaster environments; and (4) ability to serve as a headquarters liaison with all regions and as a representative of the ODIC Director in a variety of program planning and coordination efforts supporting disaster response and recovery. According to Complainant, A1 contacted her on July 26, 2011, to invite her for an in-person interview on July 29, 2011. Complainant asserted that A1 subsequently called her back and said that D1 was out of town, so the interview would take place by conference call. D1 stated that all interviewees were given the choice between an in-person interview and a telephone interview. Complainant denied that she was given the choice between an in-person interview and a telephone interview. Complainant stated that she was interviewed by a five-member panel consisting of D1, A1, O1, and two GS-12 Regional Disability Integration Specialists. Complainant noted that A1 is a GS-7 employee and that O1 is a GS-11 employee, and she expressed surprise that her former coworkers had access to her resume and personal information and would be interviewing her for a GS-12 position. According to D1, it was "normal procedure" for A1 and O1 to participate in the interviews. D1 stated that she selected the two selectees (S2 and S3), who are Caucasian males with disabilities, because of their qualifications for the position and their scores received during the interview. O1 stated, "[S2] had an excellent interview and the required background for the position. [S3] was selected by [D1] in advance of his interview." The record contains Complainant's 21-page application for Position 2, which also included the February 2, 2011, letter of recommendation from D1. The record contains S2's 11-page application for Position 2, which reflects that S2 worked as a 911 Dispatcher and as an ADA Compliance Consultant. The record contains S3's two-page application for Position 2, which reflects that he had worked for the Agency since March 2007 as a Mass Care Project Specialist. The ROI does not contain application materials for the other candidates who were interviewed. According to the record, S2 received a total of 251 points for his interview, S3 received a total of 250 points for his interview, Complainant received 218 points for her interview, and an unidentified candidate received 250 points. The record does not contain any materials indicating how the scores were tabulated. Procedural Background On October 9, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability (physical - speech impediment) when: 1. On September 12, 2011, she learned that she was not selected or granted an interview for the Disability Integration Communication Specialist, GS-0301-11/12, position (Announcement #: MG-2011-81472-VMJ-479689), while a lesser qualified Caucasian was selected for the position; and 2. On August 15, 2011, she learned that she was not selected for one of two Disability Integration Specialist, GS-0301-12, positions (Announcement #: MG-2011-81470-VMJ-47933), while lesser qualified Caucasians were selected for the positions, despite promises made by management officials to hire Complainant, and two of Complainant's former coworkers were on the interview panel and had access to her resume and personal information. 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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 18, 2012, motion for a decision without a hearing and issued a decision without a hearing on December 31, 2013. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. Agency's Motion for Decision without a Hearing In the Agency's Motion for Decision without a Hearing, the Agency contended that Complainant did not establish a prima facie case of discrimination with respect to Position 1 because she was not considered among the most qualified candidates for the position based on her relative qualifications. According to the Agency, Complainant adduced no evidence that the selections for interviews for Position 1 were determined based on race, sex, or disability, noting that four females, two African-Americans, and three individuals with a disability were selected for interviews. The Agency noted that S1, who is deaf, has a disability. The Agency maintained that it also provided a legitimate, nondiscriminatory reason, which is that Complainant did not list any experience in several areas of the Position 1 job description, whereas the nine individuals selected for interviews did list such experience. The Agency argued that Complainant failed to establish that this legitimate, nondiscriminatory reason was pretext for discrimination. The Agency also contended that Complainant failed to establish a prima facie case of discrimination with respect to Position 2 because she scored lower than 12 of the 19 candidates who were interviewed. The Agency noted that both S2 and S3 have disabilities. The Agency also argued that it presented a legitimate, nondiscriminatory reason for not selecting Complainant for Position 2, which is that, based on the interviews, Complainant was not one of the best candidates. The Agency stated that Complainant failed to establish pretext because she could not show that she was more qualified than S2 and S3. According to the Agency's motion, D1 selected "the individuals with the highest interview score and that would be best suited" for the position. The Agency included with its motion the score sheets and application materials for the 19 candidates interviewed for Position 2. The exhibit contains four interview panelist scoring sheets for S2 and four interview panelist scoring sheets for S3, whereas the exhibit contains five interview panelist scoring sheets for Complainant. The exhibit contains the composite scores for the 19 interviewees, including a numerical score for 16 categories and a total score, but the exhibit does not contain any materials showing how the composite scores were calculated for each candidate. Complainant's Response to Agency's Motion for Decision without a Hearing In Complainant's Response to the Agency's Motion for Decision without a Hearing, Complainant contended that her application did list the experience in the job description. Complainant also argued that there was evidence establishing that the Agency's legitimate, nondiscriminatory reason for selecting S1 was pretextual, highlighting O1's affidavit statement that S1 did not meet all of the qualifications for the position. With respect to Position 2, Complainant maintained that she was more qualified than S2 and S3. Complainant also identified O1's affidavit statement, which indicated that S3 was preselected by D1 prior to his interview, as evidence of pretext. The AJ's Decision The AJ's decision adopted the undisputed facts as set forth in the Agency's Motion for Decision without a Hearing. With respect to Position 1, the AJ determined that the Agency provided a legitimate, nondiscriminatory reason for not selecting Complainant. The AJ decided that Complainant failed to provide specific substantive evidence of pretext to defeat summary judgment. The AJ also found that the Agency provided a legitimate, nondiscriminatory reason for not selecting Complainant for Position 2. The AJ determined that Complainant failed to meet her burden of establishing that the Agency's proffered reason was pretext, noting that Complainant did not demonstrate that her objective qualifications and/or interview responses were superior to those of selectees or provide direct or circumstantial evidence creating an inference that she was not selected because of any protected factor. The Agency's final order fully implemented the AJ's decision. CONTENTIONS ON APPEAL Complainant's Contentions on Appeal On appeal, Complainant contends that the Commission should issue a finding on the merits in her favor because the ROI does not contain candidate score sheets for Position 2 and therefore did not include sufficient information to determine whether discrimination occurred, citing Stewart v. Dep't of Homeland Security, EEOC Request No. 0520070124 (Nov. 14, 2011). Complainant notes that even at the hearing stage, the Agency failed to submit a complete set of interview panelist scoring sheets for S2 and S3. With respect to Position 1, Complainant argues that she established a prima facie case because she was well qualified for the position and was not offered an interview, and a Caucasian male was selected for the position. Complainant also contends that she has established pretext by a preponderance of the evidence. Complainant specifically identifies evidence in the record that directly contradicts D1's statement that Complainant's application failed to include experience related to the key elements of the job. Complainant calls into question D1's assertion that S1's application demonstrated experience in all of the key elements of the job, stating that S1's application was one and a half pages long. Complainant also notes that O1's statement that S1 was not qualified for Position 1 contradicts D1's statement that S1's application indicated relevant experience in all of the key elements of the position. Regarding Position 2, Complainant maintains that she has also established a prima facie case because she was well qualified for the position and two Caucasian males were selected for the vacancies. As evidence of pretext, Complainant cites O1's statement that S3 was preselected for the position by D1. Complainant also notes that the Agency failed to provide any interview panelist scoring sheets in the ROI and that the Agency did not provide all of the interview panelist scoring sheets for S2 and S3 with its Motion for Decision without a Hearing. Complainant contends that further evidence of pretext is that A1 and O1's involvement in the selection process for this position violated the Agency's Merit Promotion Plan. Complainant identifies an inconsistency in the record between D1's testimony that all candidates were offered the choice between an in-person interview and a telephone interview and her own testimony that she was not given such a choice. Complainant requests that the AJ's decision without a hearing be reversed and remanded for a hearing if a finding on the merits in her favor is not issued. According to Complainant, the AJ inappropriately made findings of contested facts upon an incomplete record. Agency's Contentions on Appeal In response to Complainant's appeal, the Agency requests that its final order be affirmed because the record clearly establishes that Complainant failed to establish a prima facie case of discrimination or that its legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency maintains that S1 was selected "because he possessed experience in all areas of the job description" and had the best interview score. According to the Agency, in trying to establish pretext, Complainant relies upon nothing more than conclusory allegations, improbable inferences, and unsupported speculation. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 Chap. 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 law"). ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). Decision without a Hearing: Position 1 Here, we find that the AJ properly issued a decision without a hearing with respect to Complainant's claim that she was subjected to discrimination when she was not selected for Position 1 because there is no genuine issue of material fact. However, as discussed below, we find that the AJ issued a decision without a hearing in favor of the incorrect party, as the preponderance of the evidence in the record establishes that the Agency discriminated against Complainant. Moreover, we note that the AJ erred in adopting the Agency's articulation of undisputed facts, as the undisputed facts as articulated in the Agency's Motion for Decision without a Hearing are not supported by the record. Disparate Treatment: Position 1 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). 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Pretext can be demonstrated by showing such weaknesses, implausibilities, 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. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). In nonselection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Upon a review of the record, Complainant is an African-American female with a disability who applied for and was qualified for Position 1. Complainant's specific qualifications for the position at issue are discussed below in our analysis of pretext.3 A Caucasian male with a disability was selected for the position. Thus, we find that Complainant has clearly established a prima facie case of race and sex discrimination. Because Complainant has established a prima facie case of race and sex discrimination, the Agency now has the burden of identifying a legitimate, nondiscriminatory reason for not selecting Complainant. We note that while an agency's burden of production is not onerous, the agency must nevertheless provide a specific, clear, and individualized explanation for a non-selection so that the complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004). In her investigative affidavit, D1, the selecting official, stated that she did not select Complainant for Position 1 because her application did not demonstrate experience relevant to key elements of the job description. Moreover, D1 stated that she selected S1 for the position because his application demonstrated experience relevant to the key elements of the job description and because he received the highest interview score. Here, we find that Complainant has established by a preponderance of the evidence that the Agency's legitimate, nondiscriminatory reason was pretextual. O1's statement that S1 was selected for Position 1 despite not being completely qualified for the position directly contradicts D1's statement that S1 was qualified for the position while Complainant was not. O1's very involvement in the selection process appears to have violated the Agency's Merit Promotion Plan because she was a GS-11 employee interviewing applicants for a GS-11/12 position, and, as stated above, deviations from standard procedures without explanation or justification can be evidence of pretext. Additionally, because Complainant's applications for Position 1 and Position 2 were very similar, and Complainant was deemed qualified and offered an interview for Position 2, which was a GS-12 position and very similar in subject matter to Position 1, it is implausible that she would not be deemed qualified or offered an interview for a similar GS-11/12 position. Further, the record clearly establishes that Complainant's detailed applications specifically listed relevant experience in all of the seven areas identified by D1 as deficiencies with her application. For example, D1 said that Complainant did not list any experience of serving as a specialist on matters relating to developing, producing, monitoring, and maintaining materials, products, and services that are in compliance with the Rehabilitation Act, the ADA, and other accessibility requirements. However, Complainant's application indicated that Complainant "[s]erved as an office lead, specialist, and subject matter expert for [the ODIC] on matters . . . relating to developing, producing, monitoring and maintaining materials, products, and services that are compliant with Section 504 and 508 of the Rehabilitation Act, as Amended in 1998, the Americans with Disabilities Act of 1990, as amended in 2008 and other accessibility requirements." Complainant's statement is almost word-for-word the same as the first area of experience that D1 indicated was missing from Complainant's application. We find that Complainant identified in her application materials professional experience that was directly relevant to all seven of the areas of deficiency identified by D1. Moreover, the record indicates that S1's brief application did not specifically list experience in six of the seven areas identified by D1 as deficiencies for Complainant's application, contradicting D1's statement that S1's application did list the relevant experience that Complainant's lacked. Accordingly, we find that Complainant has established by a preponderance of the evidence that the Agency's proffered legitimate, nondiscriminatory reason for not offering Complainant an interview or selecting her for Position 1 was pretext for discrimination based on race and sex. Because we find that Complainant was discriminated against based on race and sex when she was not selected for Position 1 and because she would not be entitled to further relief if we found discrimination based on disability, we decline to address whether Complainant was discriminated against based on disability. Having found that Complainant was discriminated against when she was not selected for Position 1, we now turn to relief. Under 29 C.F.R. § 1614.501(b)(1)(i), an applicant for employment who has been discriminated against shall be offered the position that the applicant would have occupied absent discrimination or a substantially equivalent position unless clear and convincing evidence indicates that the applicant would not have been selected even absent the discrimination. We find that there is not clear and convincing evidence that Complainant would not have been selected for Position 1 absent discrimination. Accordingly, we REMAND the matter to the Agency, and the Agency shall offer Complainant Position 1 or a substantially similar position, and other relief as provided in our order below. Position 2 Having found that Complainant was discriminated against when she was not selected for Position 1, we decline to address whether the AJ properly decided claim 2 without a hearing and whether the AJ properly found that Complainant was not subjected to discrimination when she was not selected for Position 2 because Complainant would be entitled to no additional relief, as both positions were GS-12 positions in the same office, with identical promotional potential, benefits, and tenure. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission REVERSES in part the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER Within one hundred and twenty (120) days of the date this decision was issued unless otherwise stated below, and to the extent that it has not already done so, the Agency is ORDERED to take the following remedial actions: 1. The Agency shall offer Complainant the position of Disability Integration Communication Specialist, GS-0301-12, in the Office of Disability Integration and Coordination, or a substantially equivalent position, effective September 12, 2011. Complainant shall have 15 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer, unless Complainant can show that circumstances beyond her control prevented a timely response. This retroactive placement shall presume Complainant has permanent employment status in the position and include all promotions and monetary remuneration attached to the position. See 29 C.F.R. § 1614.501(a)(3). 2. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 60 calendar days after this decision is issued. 4. Provide each of the individuals responsible for this selection decision (selection panelists and the selection official) with at least 16 hours of training on their responsibilities, rights, and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting race and sex discrimination and management's duty to fully cooperate with EEO investigations. 5. Consider taking appropriate disciplinary action against the responsible management officials (selection panelists and selecting official). The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. Post a notice of the finding of discrimination in accordance with the paragraph below. 7. Submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its Washington, D.C. Headquarters facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 6-2-2017 __________________ Date 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 The Workplace Profile likely corresponds to the MD-NPSC, where Complainant works, or Agency Headquarters in Washington, D.C., which is where the ODIC is located. 3 Moreover, we note that the Agency deemed Complainant qualified for a Position 2, a similar position that is a GS-12 position. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-1506 17 0120141506