0120141865
09-19-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Appeal No. 0120141865
Agency No. DOD-DISA-HQ-10-003
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's August 17, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-12, in the Agency's Defense Information Technology Contracting Organization (DITCO), Satellite Communications (SATCOM) Services Section, at Scott Air Force Base in Illinois. Complainant's First Level Supervisor was the Section Chief (S1 - female, 48).
In July 2009, Complainant applied for the position of Contract Specialist, GS-1102-13, advertised under job announcement number 09-437NP. According to the job announcement, the incumbent serves as the Senior Contract Specialist and Team Lead. The job announcement listed two required skills: contract acquisitions and group leadership. For the group leadership skill, the job announcement stated the following: "Experience in instructing employees in specific tasks and job techniques. Checks work in progress and reviews completed work along with providing on-the-job training to new employees and employees in trainee positions. Oversees procurement of complex, high dollar value solicitations and proposed contractual actions within assigned section."
Complainant was one of 11 candidates on the certificate of eligibles. S1 was the selecting official and convened a four-member selection panel consisting of herself, Complainant's Team Lead (TL - female, 48), and two other management officials (P1 - female, 49; P2 - male, 53). The selection panel interviewed all 11 candidates and asked each candidate the same six questions during the interview. The six questions pertained to the following: (1) researching regulations to formulate a contracting alternative or solution; (2) contract acquisitions; (3) mentoring and training team members; (4) negotiation skills; (5) change management; and (6) customer service, oral and written communication, and leadership skills. Ultimately, the selection panel chose the Selectee (female, 35) for the position.
On November 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (59) when it did not select him for the position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to sex or age discrimination as alleged. Complainant then filed the instant appeal.
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.A. (Nov. 9, 1999) (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").
Disparate Treatment - Sex and Age
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of sex and age, we find that the Agency articulated legitimate, nondiscriminatory reasons for not selecting the Selectee over Complainant. Specifically, S1 averred that the Selectee was very strong in the areas of leadership and change management, and articulated those strengths in her interview; the Selectee described her training in the Agency's leadership program, her experience as a Team Lead, the reorganizations she was a part of, and her experience implementing policy changes and developing new processes within her team. In addition, S1 averred that Complainant's description of his leadership experience was not as detailed as the Selectee's. Similarly, the other panel members averred that the Selectee performed better than Complainant in the interview. TL averred that Complainant did not give concrete examples of his leadership skills and provided little in the way of details as he described his experiences as a Team Lead. P1 averred that Complainant was not as expansive in his responses to the interview questions whereas the Selectee provided examples that demonstrated the results she achieved. P2 averred that Complainant had the opportunity to sell himself during the interview, but did not demonstrate a depth of knowledge and was unable to convince the selection panel that he was the best candidate.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for sex or age discrimination. On appeal, Complainant argued that the selection panel pre-selected the Selectee based on existing "relationships." In addition, Complainant argued that the Agency has a trend of promoting younger, female employees over those with greater knowledge and experience. Finally, Complainant argued that there have been changes in DITCO management since he filed his EEO complaint.
Upon review, we find that Complainant failed to show that the Agency's reasons were pretextual. In non-selection cases, a complainant may establish pretext by showing that his qualifications are "plainly superior" to those of the selectee. See Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). However, an employer has the discretion to choose among equally qualified candidates. See Tong v. Dep't of Def., EEOC Appeal No. 0120053163 (June 27, 2007). Here, we find that Complainant's qualifications are not so "plainly superior" to those of the Selectee as to compel a finding of pretext. The resumes reflect that both Complainant and the Selectee had several years of experience working as GS-1102-12 Contract Specialists in DITCO, were Level III certified in contracting, and received numerous performance awards. Although Complainant had approximately 11 years of experience as a Contract Specialist (five of those with the Agency) compared to the Selectee's four years of experience as a Contract Specialist (all of those with the Agency), we note that greater years of service do not necessarily make one candidate more qualified for a position than another.
See Ropelewski v. U.S. Postal Serv., EEOC Request No. 059401313 (Nov. 23, 1994). The job announcement indicated that the position was a Team Lead and listed group leadership as one of the two required skills. The selection panel focused on the candidates' leadership skills and determined, after the interview, that the Selectee was more qualified. We note that the Selectee's resume described her role as an Acting Team Lead, her group leadership experience, her teamwork skills, her participation in the Agency's Emerging Leaders Program, and her completion of several leadership training courses.
As to Complainant's argument about pre-selection, we have held that pre-selection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not on some prohibited basis. See McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Here, Complainant failed to offer probative evidence demonstrating that the Agency's selection of the Selectee was based on sex or age. Therefore, even if the Selectee was pre-selected, we find that no discrimination occurred.
As to Complainant's argument about a trend of discrimination, we find that it is unsupported by the record. The record contains selection data from 14 selections in the SATCOM Services Section between October 2007 and September 2009.1 Of those 14 selections, 9 of the selectees were female and 11 of the selectees were under the age of 40. We find, however, that those numbers by themselves are insufficient to show a trend of discrimination. We note that the record contains no evidence that an equal number of male, female, older, and younger candidates applied for and were qualified for each of those positions. Therefore, we find that the selection data in the record does not constitute statistical evidence that the selection rate of qualified male or older candidates is significantly below the selection rate of qualified female or younger candidates.
As to Complainant's argument about changes in DITCO management, we find that it is not relevant to whether discrimination occurred in the instant selection.
Conclusion
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence does not establish that sex or age 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. 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 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, Director
Office of Federal Operations
___9/19/14_______________
Date
1 The selections were for positions ranging from GS-2 to GS-13.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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