[Redacted], Beth S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022001717 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022001717 Hearing No. 461-2021-00043X Agency No. DON 20-68836-02042 DECISION 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 January 11, 2022, final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fuel Distribution System Operator, WG-5413-09, in the Agency’s Naval Supply Command at the Navy Fleet Logistics Center in Belle Chasse, Louisiana. On September 14, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior protected EEO activity when on May 8, 2020, the Agency did not select her for a promotion to Fuels Distribution Systems Operator Supervisor, WS-5413-10. 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 2022001717 The Agency announced the position of Fuels Distribution Systems Operator Supervisor, WS-10, Vacancy Announcement No. ST-10734481-20-PC on February 28, 2020. Complainant applied for the position in March 2020 and was deemed qualified for the position and placed on the Certificate of Eligibles along with 11 other applicants. Human Resources submitted the Certificate of Eligibles to a four-person selection panel that reviewed and rated the candidates’ resumes independently. The scores were then averaged for a final score. The top six candidates had scores of 12 or higher and were referred for an interview with the panel, including the applicant that was ultimately selected for the position (Selectee). Complainant was ranked 8th out of 12, with a final resume score of 10, therefore she was not referred for an interview. Selectee was ranked second with a resume final score of 14.3. Complainant contended that she was highly qualified for the position because she had 18 years of experience at the Fuel Farm and the previous six years serving as Fuel Distribution Systems Operation, one pay grade below Fuel Distribution Systems Operator Supervisor, making her an ideal candidate for promotion. Complainant alleged that the Distribution Facilities Specialist who was her first-line supervisor (S1) was on the four-person selection panel and purposely scored her resume lower so that she would not be referred for an interview. Complainant had previously filed EEO complaints alleging discriminatory and retaliatory conduct by S1. Additionally, Complainant stated that her second-level supervisor (S2) was the selecting official who appointed the selection panel and had asked S1 to be on the panel. Complainant alleged S2’s appointment of S1 to the panel contaminated the selection process as S1 had been discriminating and retaliating against Complainant for five years. S1 stated Complainant’s resume showed she had good fuel distribution knowledge but that she lacked other resume criteria such as leadership and maintenance. He explained that the position required more than driving and accounting experience, and that her resume did not show supervisory experience and leadership potential. Two panel members, (P1 and P2), stated that the selection panel was conducted the same as previous panels and that there was no influence by anyone on the panel or outside of it during the selection process to recommend or not recommend an applicant. Both confirmed that Complainant was not interviewed because of her resume score. P1 and P2 explained that the panel decided to interview the top six ranked applicants because they scored 12 or higher, and the next lower score was a full two points lower. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected discrimination or reprisal as alleged. 3 2022001717 CONTENTIONS ON APPEAL On appeal, Complainant, through her representative, argued among other things, that the Commission should reverse the final decision and find Complainant was subjected to discrimination and reprisal. Complainant argues that the Agency failed to offer any explanation for not selecting Complainant for the position of Fuels Distribution Systems Operator Supervisor. She alleges the scoring criteria set forth on the resume score sheet was significantly different that the requirements listed in the Agency’s job announcement. Complainant alleges that S2’s appointment of S1 to the interview panel, S1’s history of retaliatory actions against Complainant, S1’s unfair scoring of Complainant’s resume, and S2 as the selecting official for the promotion show pretext for discriminatory and retaliatory animus. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 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. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for their actions. 4 2022001717 In particular, as explained above, Complainant’s resume was not rated high enough for further consideration because Complainant lacked supervisory experience and leadership potential, key requirements for the position. S1 acknowledged Complainant had good fuel distribution knowledge but stated that Selectee and the other higher-scored candidates had equal or more fuel related experience than Complainant. P1 said that Complainant’s resume “did not state she was recognized as the employee with the most institutional knowledge.” Additionally, Complainant’s resume and her testimony support S1’s statement that Complainant lacked Facility Maintenance experience. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 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. Bauer v. Bailar, 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 nonselection claim. The Commission finds that Complainant failed to show that her qualifications for the position at issue were plainly superior to those of Selectee’s. In this case, Selectee had attributes that justified her selection, and the selection officials affirmed that they believed Selectee was 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. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 259. As Complainant chose not to 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 no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. Aside from Complainant’s conclusory allegations and speculations, Complainant has failed to establish that the Agency’s reasons for pretext for discriminatory or retaliatory animus. There is no evidence that S1 underscored Complainant or that he had undue influence on the other panel members and their independent scoring of Complainant’s resume. Likewise, there is no evidence demonstrating that S2 was involved in the selection panel’s decision not to recommend Complainant for an interview. He reviewed the selection panel’s recommendations and then chose Selectee who the selection panel recommended as the most- qualified candidate. 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 the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. 5 2022001717 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 6 2022001717 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 March 15, 2023 Date