Goldie S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionJun 20, 20190120180488 (E.E.O.C. Jun. 20, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Goldie S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120180488 Hearing No. 550-2014-00251X Agency No. ARPOM13SEP03346 DECISION On November 21, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 13, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-14 Deputy Chief of Staff for Operations at the Agency’s Defense Language Institute (DLI or Institute) in Monterey, California. She had been employed at DLI for over twenty years and has served as Deputy Chief of Staff for Operations since 2007. She also served as Acting Chief of Staff for the maximum allowable 120 days in late March 2013, when the incumbent was removed from the position. Up until 2013, the Chief of Staff position had always been a military billet. However, in February 2013, a Colonel (COL), who was a Commandant, O-6 expressed frustration with the high turnover in the position and decided to civilianize it. This decision allowed Complainant and other civilians to apply for the permanent position. 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. 0120180488 2 The position of Chief of Staff, GS-0301-15 was initially announced under vacancy number WTEY13611556913570 from June 24, 2013 to July 15, 2013. Complainant applied, and was informed that she would be interviewed on August 5, 2013. The interview panel members were to be a Lieutenant Colonel (LTC) who was the Director of the Foreign Area Officer Program, a Colonel who was the Assistant Commandant, US Air Force and Command Sergeant Major (CSM), and an Installation Command Sergeant Major, US Army (ICSM). There were no civilians on the panel. COL would be the selecting official. However, on August 1, 2013, LTC emailed Complainant that COL decided to re-advertise the position because he felt the referral pool was too small as there were only three or four candidates. The Chief of Staff position was then re-announced under vacancy number WTEY13611556937420 from August 6-19, 2013. According to Complainant, COL inquired as to whether she intended to re-apply for the position. Complainant stated that she said she would as long as it was not a waste of her time. She said that COL said it would not be. The record indicates that COL approached another potential candidate for the position in August 2013. That candidate was the Assistant Provost of Continuing Education and the Dean of Field Support (DFS) who had previously served in Complainant’s position as Deputy Chief of Staff for Operations from 2004 to 2006. DFS had not applied for the job under the first announcement. Following the second job announcement, Complainant and DFS applied for the Chief of Staff position and were determined to be qualified for the position. According to the record, the certificate of eligibles for the second announcement, issued on August 23, 2013, indicated that eight applicants were to be considered for the Chief position; seven were identified as male. Complainant was the only female under consideration. The interview panel convened and interviewed the eight applicants. After the interviews, the panel members ranked them. According to the scoring sheets in the record, ICSM gave perfect scores (25 out of 25) to Complainant, DFS, and an outside candidate (OC), whom ICSM noted had the “strongest interview.” CSM gave the exact same scores to Complainant, DFS, and OC, even though she noted that OC had an outstanding interview, she gave her highest rating to a fourth candidate. LTC gave perfect scores of 25 to Complainant, DFS, and OC. The consensus of the panel was that the rank order of the three top candidates was: (l) OC, (2) DFS, and (3) Complainant. Thereafter, LTC conducted an in-person interview of OC, who was based in Kansas, and determined that he would not be suitable for the position. The panel then unanimously recommended DFS for the job. According to the record, CSM explained that both DFS and Complainant were good candidates, but DFS’ leadership style, demeanor, and “the way he interacts with people" made him the best person for the job. CSM also noted that, in addition to having an outstanding interview, he had worked on both sides of the DLI in that he had been part of the staff and also had worked in the provost organization. LTC said that he chose DFS over Complainant because of the strength of DFS’ interview. ICSM said he ranked DFS first because he had a more well-rounded background and he interviewed better. 0120180488 3 COL stated that he did not review the candidates' applications or the panel members' notes but based his decision on the verbal recommendation of the panel. Accordingly, he selected DFS for the Chief of Staff position. On November 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when on September 18, 2013, COL did not select Complainant for the position of Chief of Staff, Job Announcement Number, WTEY13611556937420. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on October 21-23, 2015, and issued a decision and order of judgment on September 29, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to sex discrimination. The AJ determined that Complainant established a prima facie case of sex discrimination since she is female, was highly qualified for the Chief of Staff position, and was not selected in favor of a male candidate. The AJ also determined that the Agency’s management had articulated a legitimate, nondiscriminatory reason for choosing the Selectee when they asserted that the DFS had a better interview than Complainant. The AJ also considered each of Complainant’s pretext arguments, including that COL had engaged in pre-selection when he re-advertised the job and solicited DFS’s application; DFS was not eligible for the GS-15 Chief of Staff position; the former military Chief of Staff who had been removed from the position considered DFS to be a “complete failure” when he worked on a team under him that had been hand-picked by COL; and COL had made sexist statements to, about, and around Complainant. With respect to Complainant’s pre-selection argument, the AJ noted that the Human Resources (HR) Officer averred that if a supervisor receives a referral list without a viable number of candidates, he or she has the option to re-announce the position. In this instance, the HR Officer testified that she assured COL that if the list had fewer than five candidates on it, HR could re- announce it. Thus, in that the first announcement had less than five referrals, the AJ did not consider it a deviation or an act of sex discrimination when COL had the position re-announced. The AJ also determined that, even though the record suggested that COL wanted DFS to apply for the Chief of Staff position, it was a disputed fact whether COL solicited the DFS’ application since DFS denied that COL asked him to apply. Accordingly, the AJ found that Complainant failed to show that DFS was definitively pre-selected. However, the AJ noted that even if COL had engaged in pre-selection, that alone is not sufficient to support a claim of discrimination since the evidence did not show that such pre-selection was due to DFS being male rather than the DFS being a well-regarded candidate whom COL wanted to have in the pool of qualified applicants. The AJ also was unpersuaded by Complainant’s argument that the Agency’s reason for the selection was a pretext for discrimination because, according to Complainant, DFS was not eligible for the GS-15 Chief of Staff position. 0120180488 4 According to the testimony of Complainant’s expert witness, an HR consultant, the language of the second vacancy announcement made DFS ineligible to apply for the Chief of Staff position because DFS was in an excepted service term appointment, which did not confer civil service status as required by the job announcement, and he could not meet the eligibility requirements by applying under Veterans’ Employment Opportunities Act (VEOA) since VEOA status was not listed in the "Who May Apply'' section of the job announcement. The AJ found the expert’s testimony persuasive and found that the vacancy announcement, as written, did not properly indicate that eligibility can be conferred by VEOA status. However, the AJ also found that even if this error constituted a violation of merit promotion principles and is a prohibited personnel action, she was convinced that this error was not due to an attempt to discriminate against Complainant because of her sex or to favor DFS because he is male. Regarding Complainant’s assertion that DFS was not qualified for the position because the former Chief of Staff considered him to be a “complete failure,” the AJ determined that the former Chief was not credible. According to the record, the former Chief said that COL chose DFS to lead the Organizational Realignment and Transition Team ("ORTT”), which he considered a failure, because after ORTT was dissolved, there was still not a completed work document and “the documented civilians and military personnel [still] exceeded the maximum number of personnel[.]” COL disagreed with the former Chief’s assessment. COL testified that DFS and his team ''had done tremendous work in a very, very complex task during a time when the Institute was under tremendous pressure externally as it related to manpower.” COL also testified that, although documented personnel still needed to be further reduced, the team had made "significant progress towards the objective structure and number" during a "very sensitive time." The AJ explained that she credited COL's version of events over the former Chief because in his hearing testimony, the former Chief claimed that he was not removed from his Chief of Staff position, but rather had to be reassigned to “Manpower” in order to finish the document that ORTT should have finished. In contrast, COL stated in his deposition that the former Chief was removed from his job because he had been having a very hard time dealing constructively with the staff causing COL to lose confidence in him. The AJ found that the evidence of record supported COL’s testimony that he removed the former Chief because of poor performance, making the AJ question the impartiality of his testimony as it related to DFS’ performance on the ORTT. Finally, with respect to Complainant’s allegations that COL made sexist comments, the AJ found the proffered evidence was compelling and demonstrative of COL’s preference for working with men. However, the AJ found that there was no evidence that the COL influenced the decision of the panel. Undisputed evidence in the record confirmed that the three panel members unanimously recommended DFS over Complainant and that COL fol1owed the recommendation of the panel in choosing DFS for the position. The AJ noted that any assertion that COL would have chosen someone else if the panel hadn't recommended DFS was mere speculation. 0120180488 5 The AJ also observed that, while there was considerable support in the record for Complainant's contention that her ten years serving successfully as the Assistant Deputy Chief of Staff for Operations, Deputy Chief of Staff for Operations, and Acting Chief of Staff made her the best qualified candidate for the position, several factors in the panel process were disadvantageous to Complainant's candidacy. The AJ noted that it was the first time LTC was a member and chaired an interview panel, and his decision to have only three panel members, all military, and no civilian members showed his inexperience. The other two panelists were also inexperienced with CSM having only served on one other hiring panel 13 years earlier. The AJ further noted that all three panel members considered military leadership experience a strong credential, which DFS had and Complainant did not have. The AJ determined that under these circumstances, it was unlikely that Complainant’s credentials would have appeared “demonstrably superior” to DFS’ credentials to these panel members. The AJ concluded that Complainant did not prove by a preponderance of the evidence that the panel favored DFS because he was male and/or because she was female or that their likely preference for military leadership experience, especially for a position just recently civilianized, constituted a preference due to sex discrimination. Thus, the AJ entered judgment in favor the Agency. This appeal followed. 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. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). On review, the Commission finds that the AJ properly weighed the evidence and made credibility determinations that are entitled to deference given her first-hand observation of the demeanor and conduct of the witnesses at the hearing and Complainant’s failure to provide argument or evidence, beyond her own conjecture, sufficient to challenge the AJ’s credibility findings. Moreover, we find that substantial evidence supported the AJ’s finding of no discrimination. As the AJ observed, even if Complainant were correct that COL solicited DFS’ application, that there were errors in the vacancy announcement that rendered DFS ineligible to participate in the application process, and that COL made sexist statements indicating a preference for working with men, this would still be insufficient to satisfy Complainant’s burden of proving her nonselection was because she is a female. Moreover, Complainant’s focus on her credentials and experience do not refute the articulated reason provided by the panel – that DFS had an outstanding interview. 0120180488 6 When asked how DFS’ interview compared to Complainant, ICSM explained that DFS “responded to the questions in a more detailed manner, and his oral communication skills were much stronger." We find that Complainant failed to present persuasive evidence that the Agency's legitimate, nondiscriminatory reasons were a pretext for sex discrimination. CONCLUSION The Commission AFFIRMS the Agency’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 0120180488 7 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 (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 June 20, 2019 Date Copy with citationCopy as parenthetical citation