E.E.O.C. LYNN L. COSENTINE, COMPLAINANT, v. MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AGENCY. Appeal No. 07A40114 Agency No. HS-04-09901 Hearing No. 310-2003-05082X August 9, 2006 DECISION Following its July 6, 2004 final order, the agency filed a timely appeal. Therein, the agency requested that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ's) finding that the agency discriminated against complainant on the bases of her sex and national origin. Complainant also timely filed an appeal from the agency's final order, requesting that the Commission affirm the AJ's finding of discrimination, but substantially broaden the award of relief. The Commission accepts both appeals pursuant to 29 C.F.R. § 1614.405. Complainant, a GS-13 Senior Special Agent, employed at the agency's Dallas, Texas, District Office (formerly the Department of Justice's Immigration and Naturalization Service), filed a formal EEO complaint on September 16, 1999. Complainant claimed that the agency discriminated against her on the bases of national origin (Italian-American), sex (female), age (D.O.B. 4/2/47), and in reprisal for prior EEO activity, when in August 1999, she was not selected for the GS-14 position of Deputy District Director, Dallas District Office (Position), under Merit System Plan-99-255. Specifically, complainant claimed that despite the fact that both recommending officials (the Regional Director and the District Director of the Dallas District Office), knew her, and despite her superior qualifications, she was neither interviewed for, nor selected for, the Position. Complainant claimed that the agency historically discriminates against women by failing to place them in managerial positions. Complainant noted that she herself had been a "trailblazer" at the agency in this regard. Complainant claimed that the agency favors Hispanics, and disproportionately places male Hispanics in managerial positions. Complainant stated that her qualifications for the Position were far superior to that of the selectee (SE), a Hispanic male, noting that she dedicated herself fully to the agency's mission for thirty years. At the conclusion of the investigation, complainant was provided with a copy of the investigative report and requested a hearing before an AJ. Following a hearing, the AJ issued a decision. Therein, the AJ determined that complainant failed to establish a prima facie case of discrimination on the basis of age, finding that SE was in the same protected age group as complainant. The AJ also determined that complainant failed to establish a prima facie case of reprisal, finding that the evidence failed to show that the selecting official was aware of her prior protected EEO activity. The AJ next determined that, with respect to the interview process, complainant failed to establish a prima facie case of discrimination on any of her protected bases, finding that applicants both inside and outside of her protected groups were interviewed. Nonetheless, the AJ determined that complainant established a prima facie case of sex and national origin discrimination regarding the non-selection itself. The AJ then determined that the agency articulated legitimate, nondiscriminatory reasons for its action. Specifically, the AJ credited the statements of the selecting official who testified that a Best Qualified List of candidates was generated and given to the two recommending officials, who determined which candidates should be interviewed. Based on their interview of the candidates, the recommending officials advised the selecting official that SE was their choice. The selecting official indicated that he did not simply "rubber stamp" this recommendation, but also conducted an independent assessment and comparison of the qualifications of all of the candidates, creating a matrix to do so.2 The selecting official further testified that because SE was on the non-competitive list, he could have been selected without any further selection processing. A selection process was nonetheless employed. The AJ determined that the selecting official found SE the best qualified candidate because he had twelve years of GS-14 level work experience, including a variety of highly qualifying experiences for the Position, such as work as an Officer-in-Charge and as Acting District Director of the Dallas Office. The AJ also credited the selecting official's statement that SE was selected due to his extensive supervisory experience, supervising up to 67 subordinates, and because of his education, which includes his graduation from the "War College." By contrast, the AJ found that the selecting official noted that complainant had no supervisory experience within the last eight years, and no experience as an Officer-in-Charge or Acting District Director. The AJ also found that the interviews were conducted by the recommending officials, and that the selecting official did not use their notes when making his decision. The AJ found that both the selecting official and District Director, who testified at the hearing, attested that SE was recommended/selected because he was the best qualified candidate for the Position. In addressing whether complainant demonstrated that the agency's articulated legitimate, non-discriminatory reasons were a pretext for discrimination, the AJ found that the record lacked the selecting official's notes, including the above described matrix, as well as the interview notes, because the agency failed to maintain this evidence. The AJ therefore drew an adverse inference against the agency. Based on the adverse inference, the AJ concluded that complainant was better qualified than SE, and that she proved, by a preponderance of the evidence, that the agency's articulated reasons were merely a pretext for sex-based and national origin-based discrimination. As relief, the AJ ordered the agency to pay complainant back pay and benefits, from the time of her non-promotion, to her retirement, the total sum of $25,000.00 in pecuniary and non-pecuniary damages, and $24,549.31 in attorney's fees and costs. The agency's final order dated July 6, 2004, rejected the AJ's decision. On appeal, the agency argues that the AJ erred in finding that complainant failed to establish a prima facie case of discrimination on any of her alleged bases concerning her lack of an interview, but then concluding that she nevertheless established a prima facie case of sex and national origin discrimination as to the non-selection itself. The agency contends that the AJ's finding regarding the lack of an interview is correct, and that it precludes a finding of discrimination regarding the actual non-selection. The agency also argues that the AJ erred in drawing an adverse inference regarding the destroyed documents, asserting that this information is otherwise part of record. The agency avers that the missing matrix was based on the candidate applications, which are in the record. The agency states that when considered along with the investigative affidavits of the responsible agency officials, the record contains the same information as reflected in the destroyed documents, and that there is no disadvantage to complainant. Further, the agency argues that the AJ abused her discretion by applying the adverse inference in such a broad manner. Finally, the agency argues that even absent discrimination, SE would have been selected for the Position, noting that an agency is accorded much discretion in the selection of its management officials, such that complainant would not be entitled to damages. On appeal, complainant disputes, point-by-point, the agency's allegations of error, and sets forth extensive argument to support a claim for entitlement for additional damages. Analysis and Findings Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. As an initial matter, to the extent that the agency's failure to provide complainant with an interview may be construed as a separate claim, we determine that the AJ correctly determined that complainant did not establish a prima facie case of discrimination on the alleged bases.3 Specifically, we concur that the evidence showing that applicants both inside and outside of complainant's protected groups were interviewed precludes establishing the required inference of discrimination under the applicable legal standards. See, generally, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission further finds that the AJ properly drew an adverse inference against the agency in this case. Pursuant to 29 C.F.R. § 1614.109(f)(3), an AJ may sanction a party for failure to provide requested relevant information, to include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). The Commission has determined that delegating to its AJs the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy that will effectuate the policies of the Commission. See Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. See Hale, supra. Agencies have a duty to maintain pertinent evidence upon receiving notice that a complainant has initiated the EEO process. See 29 C.F.R. § 1602.14. Although the record in this case shows that the destruction was inadvertent, and there is no indication that the agency acted in bad faith, the Commission's regulations do not require a finding of willfulness or bad faith. Thus, the AJ acted within her discretion in drawing an adverse inference against the agency regarding the lack of the selecting official's notes, including the above described matrix. The appropriate adverse inference for the AJ to have drawn was that the missing information would have reflected unfavorably on the agency. See Hale, supra. Even with this adverse inference, however, the balance of the evidence of record does not establish that complainant's qualifications were plainly superior to the qualifications of the SE, so as to establish pretext, as more fully discussed below. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. See Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). On appeal, as evidence of pretext, complainant argues that her qualifications are far superior to those of the SE. In particular, she avers that she had superior leadership qualities, noting that she was the first woman at the agency to hold leadership positions, especially in the area of investigations, and that her work was featured in the Chicago Tribune. Additionally, complainant avers that she has nationally significant experience, while SE only had experience in Texas. In this regard, complainant contends that she opened the "Austin Legalization Center," which was publicized on a national level, and that she worked in Headquarters in the summer of 1999. At the hearing, she testified that she was very knowledgeable of the agency's regulations, including EEO regulations, and also "had knowledge" of resources and budgeting. Complainant further asserts that she has a master's degree in Linguistics from a major university, and that SE's "War College" diploma has no relevance to the Position. Complainant also argues that her particular management experience would make her more effective in addressing the personnel problems in the Dallas District Office (EEO and whistle-blower problems), as compared to SE. Complainant also asserted that SE's experience was, over-all, at a lower level than hers, and that she believed that he over-estimated the number of workers he supervised. As additional evidence of pretext, complainant asserts that the Commission rendered a finding of discrimination regarding her April 1, 1998, to March 31, 1999, performance appraisal, which is "potent support" for a finding of discrimination in this case. See Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A20101 (August 15, 2003). Complainant avers that, statistically, the agency maintained an "over-representation" of Hispanic employees, and an "under-representation" of females, which also supports a finding of discrimination. Complainant also argues that she testified without contradiction that managers indicated that "ethnic diversity" is a "plus factor" for selection. We have carefully considered complainant's arguments and evidence, as well as the entire record. We find that she fails to satisfy her burden of proof. The record supports her contention that she had qualifying experience for the Position; however, the record reflects that the District Director clearly preferred to have SE as his Deputy, both because of the variety of his experience, albeit primarily in Texas, as well as because of his management style. In his affidavit, the District Director attested that in reviewing applications, he determined that SE had worked in "Border Patrol," "Inspections," "Adjudications," and "Detention and Deportations," including significant management responsibilities. The District Director also attested that complainant's experience was limited primarily to investigations, and that her supervisory experience was neither extensive nor current. Additionally, the District Director felt that SE had the personality to handle the current personnel challenges in the Dallas District Office, noting his success in resolving a highly publicized labor conflict. Furthermore, the District Director believed that he and SE had compatible working styles, and would work well together, and that SE was fully able to step in as the District Director. In his hearing testimony, the District Director testified that he had a lack of confidence in complainant's ability to assist the field, and that he seldom went to her for assistance. In discussing his working relationship with SE, the District Director admitted that he had to "counsel," him for some "bone-head" things he had done in the past. However, the District Director also explained that these matters were not significant, and complimented SE on his mature and professional attitude when receiving this criticism. The District Director testified that SE's ability to react positively and professionally to his style of criticism was one of the reasons he wanted SE as his Deputy. The District Director further testified that SE performed in an outstanding manner while under fire, and that he had high confidence in his ability to perform in both the Position, as well as in the District Director position. Similarly, the selecting official testified that SE, as a GS-14 for many years, is a proven manager, and that he learned the functions of the Dallas District Office as he was steadily promoted through many of its divisions. The selecting official also found SE's qualifications superior to complainant's qualifications because of his experience administering a large budget, and the variety of management positions he held, including details to the Position. The selecting official testified that, while complainant is a good performer, with more national level experience, that this experience is essentially limited only to investigations. Although the selecting official's testimony is based on a contemporary review of the applications, we find that his statements are corroborated by the record. Specifically, we find that SE's application reflects the broad breath of experience noted by both the selecting official and the District Director, to include significant management responsibilities in the Dallas District Office. Complainant's experience, as reflected on her application, shows only three years of supervisory experience, which is not current. Likewise, it does not appear that she performed managerial details, or had concomitant experience in management positions, within the Dallas District Office, and had "knowledge of," but no actual experience, administering a large budget. As to education, while complainant asserts that SE's "War College" diploma is not relevant to the Position, we note that her graduate degree in Linguistics also lacks relevance to the Position. In this regard, we note that SE also has an Master's Degree in Public Administration, which we find is highly relevant to the Position. Additionally, the District Director, recommended SE for selection because he had confidence in his ability, and felt that he could work well with him. In non-selection cases, pretext may be found where the complainant's qualifications are 'plainly superior' to the selectee's. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, however, while complainant argues that she is better qualified than SE, we find that, based on the reasons set forth above, she failed to present evidence that her qualifications were "plainly superior," so as to establish pretext. Moreover, we note that an agency has broad discretion to set selection policy and carry out personnel decisions, especially those concerning the selection of management officials, and this authority should not be second-guessed absent evidence of unlawful motivation. See Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Furthermore, regarding complainant's remaining evidence of pretext, and/or unlawful motivation, we find that although the record confirms that she prevailed in a claim of discrimination regarding a recent performance appraisal, the record also reflects that the discriminating management officials in that case played no role in her non-selection. Moreover, the record also shows that the recommending officials and the selecting official had no input into the performance appraisal, and had no knowledge of the discrimination. Therefore, we conclude that the previous finding of discrimination cannot be viewed as evidence of discriminatory animus regarding the non-selection herein. Additionally, as to complainant's demographic evidence, we find that without more, such evidence cannot be viewed as probative of pretext or discriminatory animus in a particular incident of non-selection. Likewise, management statements regarding the desirability of diversity in the workplace may not be viewed as probative of discriminatory animus. Accordingly, we find complainant failed to show, by a preponderance of the evidence, that the agency's proffered reasons for her non-selection were merely a pretext for unlawful discrimination. Conclusion For the reasons set forth above, we find complainant failed to show, by a preponderance of the evidence, that the agency's proffered reasons for her non-selection were merely a pretext for unlawful discrimination. Accordingly, we conclude that the AJ's finding of discrimination in this case is not supported by substantial evidence. Therefore, we AFFIRM the agency's final order in that part rejecting the AJ's decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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: Stephen Llewellyn Acting Executive Officer Executive Secretariat Footnotes 1 Originally, this complaint, previously identified as Agency No. I-99-C177, was filed against the Department of Justice, Immigration and Naturalization Service, prior to the transfer of its functions to the Department of Homeland Security. Additionally, complainant initially filed this complaint as a class action complaint, which was dismissed for failure to satisfy the regulatory class complaint criteria. See Cosentine, et al., v. Department of Homeland Security, EEOC Appeal No. 01A23856 (March 24, 2004). 2 In his hearing testimony, the selecting official testified that he made a matrix based on applicant qualifications and each quality ranking factor. For each quality ranking factor, he used one of 3 scores to rate each applicant: A zero signified "qualified;" a minus sign signified "barely qualified;" and a plus sign signified "highly qualified." He also testified that his personal assistant independently prepared a similar matrix, and that he compared the two to make sure that he did not miss anything. Both of these matrixes are absent from the record. 3 The record indicates that all of the applications were forwarded to the selecting official for consideration, without regard to whether or not the candidate received an interview. The record also reflects that the selecting official compared the qualifications of all of the candidates, again without regard to whether they were interviewed, and also without consideration of any interview notes. Therefore, it cannot be concluded that an interview was required for further consideration in the selection process.