Complainant,v.Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Glenn Research Center), Agency.

Equal Employment Opportunity Commission

Aug 6, 2015

01-2013-2435-0500 (E.E.O.C. Aug. 6, 2015)

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

,
Complainant,

v.

Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Glenn Research Center),
Agency.

Appeal No. 0120132435

Agency No. NCN-12-GRC-0032

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
May 6, 2013 final Agency decision (FAD) concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract
Specialist in the Research and Space Operations Branch, Procurement Division, Center
Operations Directorate, at the Glenn Research Center in Cleveland, Ohio. Complainant
applied for one of three Lead Contract Specialist positions advertised under Vacancy
Announcement No. GR11C0101. Complainant was deemed qualified and was included on one
of the two certificates of candidates that were forwarded to the selecting official (SO). SO and
an interview panel of four other individuals interviewed the eight candidates. SO ultimately
selected three selectees for the positions. On or about February 1, 2012, Complainant was
informed by SO that she had not been selected.

On April 12, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (61) when, on February 1, 2012, she learned that
she was not selected for the Lead Contract Specialist position, advertised under Vacancy
Announcement No. GR11C0101. At the conclusion of the investigation, Complainant was
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provided with a copy of the report of investigation (ROI) and notice of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a FAD. In accordance with Complainant's request, the Agency issued
a FAD, pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that Complainant had established a prima facie case of age
discrimination and that the Agency had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, SO affirmed that he was seeking very technically competent Leads who
were also knowledgeable with a = wide range of contracting processes, from small purchases
to commercial contracts to service contracts to research and development contracts.
Additionally, SO stated that he sought candidates with a vision for the future consistent with
the division's goals and objectives as well as candidates who demonstrated the skills to
continue to build a procurement organization that was flexible, responsive and technically
competent.

SO asserted that Complainant had a good application, but that her interview was not as good
and she gave marginally satisfactory interview responses. As an example, SO explained that in
response to one question, Complainant responded that she would seek a third party to deal with
potential differences of opinion between a Lead and her Branch Chief, an answer that raised
concerns in his mind. In contrast, SO indicated that he was seeking Leads who would be
supportive and cooperative and her answer suggested a more confrontational relationship with
her supervisor. SO claimed that several of her answers were without much detail, such as in
discussing her involvement in process improvements and initiatives. SO added that her
answers about her career goals gave no sense of her vision of the future for herself or her role
as a leader. SO maintained that he was seeking Leads who would demonstrate good
interpersonal skills to support their branch chiefs, be models of customer service, and find
satisfaction in training, mentoring, and monitoring less experienced branch members. SO did
not find that Complainant demonstrated these qualities.

After all eight interviews were complete, the panel agreed to talk with each applicant’s
supervisor to gain their perspective of the employee’s strengths and weaknesses.
Complainant’s supervisor (S1) indicated that Complainant needed more flexibility in
interpersonal skills, since she is very confident about her own knowledge and is hard to
persuade to change her views. SO and the panel thought this trait may make it difficult for a
Lead to persuade less experienced employees to accept the established process. Furthermore,
SO believed that a Lead should also be open to the opinions and ideas of others, even less
senior employees.

SO and the panel agreed that Selectee 1 and Selectee 2 were the first and second most qualified
candidates, while the decision on Selectee 3 was more difficult. None of the panel members
included Complainant as one of their most highly qualified, largely because her interview
responses were relatively weak and validated S1’s assessment that Complainant was rather
inflexible and confrontational. SO asserted that while Complainant's technical skills were very
good, in his opinion they were not as extensive or broad-based as Selectee 3’s. Therefore,
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Complainant was not one of the panel's three most highly qualified candidates and was not
selected.

In attempting to rebut the Agency’s reasons as pretextual, Complainant pointed out that the
position description for the GS-14 Lead Contract Specialist position did not make any reference
to a management or quasi-management role. Further, she stated that the selection criteria did
not indicate that a candidate's willingness or capacity for becoming a manager as a pre-
requisite for the position. Complainant noted that none of her last five employee appraisals
identified any of the shortcomings SO cited as why she did not merit promotion. In addition,
Complainant stated that she has not been counseled on these shortcomings, and there was no
documentation anywhere that cited her character flaws or recommended correction.
Complainant asserted that she believed that there were unspoken selection criteria: perceived
likelihood of availability to compete for a Branch Chief position in future years and those
candidates who are currently retirement eligible were not seriously considered.

The Agency concluded that Complainant failed to establish that management’s reasons for its
actions were pretextual. Complainant believed that SO discouraged the selection of retirement-
eligible employees based on a lessened likelihood that they would later apply for the Branch
Chief position. However, the record showed that SO had selected retirement-eligible
employees into Lead positions in 2011. Therefore, the Agency determined that even in if the
Lead positions were “feeder” positions to Branch Chief positions, the record evidence showed
that retirement-eligible employees were being sought and have been placed in these positions.
As a result, the Agency found that Complainant had not shown that the Agency’s reasons for
its actions were pretextual and had therefore not been discriminated against as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the FAD was legally and factually flawed. Complainant
argues that the reasons for her non-selection are pretextual. For example, Complainant notes
that S1 had never expressed any concern about her being inflexible or her failure to persuade
less experienced employees, and adds that she received high performance ratings.
Complainant disputes that she had a poor interview and explains that her focus was to show
that she had already been performing the work. Complainant alleges that the Agency devalued
experienced long-term employees in favor of a concern about the timeline for future GS-15
candidates. Finally, Complainant alleges that she was harmed as far back as Branch Chief
interviews in 2007, and claims that she should have been promoted in 2008. Accordingly,
Complainant requests that the Commission reverse the FAD.

Disparate Treatment
ANALYSIS AND FINDINGS

In general, disparate treatment claims, such as the matter before the Commission, are
examined under a tripartite analysis whereby Complainant must first establish a prima facie
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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 Corp. v. Green, 411 U.S. 792, 802-804 (1973);
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000) (applying the analytical framework described in McDonnell
Douglas to an ADEA disparate treatment claim). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were a pretext for discrimination. Id. At all times, Complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993); U.S. Postal Serv. Bd. Of Governors v. Aikens

, 460 U.S. 711, 715-716 (1983).
In the instant case, assuming arguendo that Complainant established a prima facie case of age
discrimination, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for not selecting Complainant. Specifically, SO explained that he
convened a panel (which included him) to interview the candidates for the position. ROI, at
140. SO stated that Complainant had a good application, but her interview responses were not
as good. Id. at 143. SO affirmed he and the panel believed that Complainant gave marginally
satisfactory responses to their questions and she failed to demonstrate the supportive and
cooperative nature, vision of the future, customer service focus, and interpersonal skills he was
seeking. Id. at 143-44. The panel spoke with the candidates’ supervisors, and S1 indicated
that Complainant needed more flexibility in interpersonal skills and that she was hard to
persuade to change her views. Id. at 145. As a result, none of the panel members included
Complainant as one of the most qualified candidates based on her weak interview responses
and S1’s assessment that Complainant was rather inflexible and confrontational. Id

. at 147.
The panel subsequently concluded that Selectee 1 was the most qualified candidate and selected
him based on his strong interview, excellent qualifications in contracting support, insights and
vision of working more effectively, and his process improvement and training experiences.
ROI, at 146. The panel concluded that Selectee 2 was the second-best qualified candidate
based on his strong interpersonal skills, willingness to acknowledge and seek appropriate help,
and his strong contract background and operational experience in very large and complex
situations. Id. at 147. The panel determined Selectee 3 was the third-best candidate based on
her currency with major procurement experiences, familiarity with a wider variety of
procurement types, stronger computer procurement skills, and very positive attitude. Id

. at
149. As a result, SO chose Selectee 1, Selectee 2, and Selectee 3.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext is by showing that her qualifications are observably superior to those of the selectee.
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Bauer v. Bailar
The Commission finds that Complainant failed to show that her qualifications for the position
were plainly superior to those of the selectee. In this case, the selectees had attributes that
justified their selection, and the selection officials involved all affirmed that they believed that
the selectees were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications.
, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not
the only way Complainant may establish pretext as to her non-selection claim.
Tx. Dept. of Cmty. Affairs v. Burdine

, 450 U.S. at 259.
As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record lacks evidence that the Agency’s selection or the selection
process was tainted by discriminatory animus. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that discriminatory animus was a factor in its actions.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
has not established that she was subjected to age discrimination as alleged.1

CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 To the extent that Complainant wishes to pursue new claims of discrimination as alluded to in
her appeal, she must contact an EEO counselor in accordance with 29 C.F.R.
§ 1614.105(a)(1).
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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 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 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
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denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court 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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

Date
August 6, 2015