[Redacted], Mindy O., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2022001790 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022001790 Agency No. DLAR-20-0187 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 20, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Chemist, GS-1320- 12, at the Agency’s Defense Supply Center in Richmond, Virginia. Her first-line supervisor was the Supervisory Chemist (S1), and her second-line supervisor was Supervisory Chemical Engineer (S2). Complainant was diagnosed with Systemic Lupus Erythematosus in 2014 and teleworked four days a week as a reasonable accommodation for her disability. 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 2022001790 On May 29, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (Systemic Lupus Erythematosus) when she was not selected for the Senior Chemist, GS-1320-13, position (Vacancy Announcement No. DLAAvn-20- 10713005-MP) in the Engineering Directorate. Complainant was notified of her non-selection on March 5, 2020. Complainant applied for the position of Senior Chemist in February 2020, online through USA Jobs. Prior to the position being posted, she was notified internally that the position was going to be announced. Complainant was interviewed for the position by S2 on February 27, 2020, and on March 5, 2020, she was notified she was not selected for the position. S2 was the selecting official for the position. He explained that there was not an interview panel because they were optional for non-supervisory positions depending on the location. Since the position was a direct report to S2, he explained he had the duty of conducting interviews and making the selection. He explained that he asked all interviewees the same questions, which he distributed to the interviewees so they could refer to the questions during the interviews. S2 said he interviewed about 13 candidates from the list of certified candidates, including both Complainant and the applicant he selected for the position (Selectee). S2 explained the primary duty for the Senior Chemist position was to train new employees. The training program was a formal program that lasted about four to five months with daily classes, homework, and tests. Selectee, a Chemical Engineer, GS-12, had worked with the Agency for about nine years, including five years of experience in Hazardous Information Program (VB) within the Engineering Directorate, where the position was located. She had previously worked in the Agency’s training program where she developed training materials for new employees in the two-year Agency intern program and explained how she conducted “knowledge checks” and surveys of trainees to gain insight into her effectiveness as a teacher and ways to improve her teaching. For the interview, Selectee had prepared a draft training plan describing how she would develop, execute, and enhance their training program as Senior Chemist. S2 also stressed the importance of Selectee’s experience as a Product Specialist in the Agency’s Aviation Integrated Supply Team (IST) as critical to understanding what their chemists need to do in their positions and her experience would be useful when teaching specific processes as part of the training program. By comparison, S2 said that Complainant was not as qualified as Selectee because she did not have any experience as a Product Specialist or working with the IST. Complainant had fewer years working on the floor and did not have experience executing any formal training program. Complainant alleged that S1 told employees that even though the job announcement stated telework would be available for the position, that S2 told him (S1) that only one day of telework per week would be authorized. Complainant alleged that she was not selected for the position of Senior Chemist because her disability required her to telework more than one day per week and that Selectee demonstrated a greater ability to be physically present in the office. 3 2022001790 At the time Selectee applied for the Senior Chemist position, Selectee was physically present one day per week and teleworked three days per week (Selectee worked a “4-10” schedule, working ten-hour days, four per week). Selectee’s telework schedule was not a reasonable accommodation based on a disability. S1 explained he told Complainant that the previous Senior Chemist only teleworked one day a week in an informal conversation about the open position. However, S1 stated S2 never made any comment to him about authorizing only one day of telework per week for the position and S1 denied the allegation that he told Complainant that S2 made any statement regarding telework and the Senior Chemist position. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed. 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). 4 2022001790 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 Complainant establish a prima facie case disability discrimination we find that the Agency articulated legitimate, nondiscriminatory reasons for their actions. In particular, as explained above, Selectee’s experience and the quality of her interview questions exceeded the other 12 applicants interviewed for the Senior Chemist position. In a Selection Justification Memorandum dated March 3, 2020, S2 cited Selectee’s education, her nine years of experience with the Agency, including having worked as a Product Specialist and as a trainer with the Agency’s training team. Additionally, he cited specific examples from her recent experience as a chemical engineer, including processing safety and health information into the Hazardous Material Information Resource System, and volunteering to improve work processes. 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 official affirmed that he 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. The Commission finds no persuasive evidence that Complainant's protected class was 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 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 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 as alleged. 5 2022001790 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. 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). 6 2022001790 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 14, 2023 Date