Sheila I.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 5, 2019

2019001243 (E.E.O.C. Apr. 5, 2019)

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

Sheila I.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019001243

Hearing No. 420-2014-00012X

Agency No. ARCEVICK12DEC04772

DECISION

On October 24, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 1, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Workforce Management Specialist, GS-
0301-09, at the Agency’s Lower Mississippi Valley Division, Business Resource Division, U.S.
Army Corps of Engineers in Vicksburg, Mississippi.

On March 18, 2013, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American) and age (over 40) when,

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.
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on December 3, 2012, she became aware that she was not selected for the position of Budget
Analyst, GS-0560-09/11, and that a younger white female candidate was selected.

After the investigation, Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). Thereafter, the AJ conducted a hearing on June 20 and 21, 2018. Following the
hearing, the AJ issued a decision finding no discrimination.

In the instant final action, the Agency adopted the AJ’s finding of no discrimination.

The instant 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).

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination – that
a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Complainant bears the ultimate responsibility to persuade the fact finder 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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where, as here, the Agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a
preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S.
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Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of
Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human
Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

In his decision, the AJ determined that the following evidence was presented during the
investigation into the formal complaint and at the hearing that established that responsible
management officials articulated legitimate, non-discriminatory reasons for the selection made.

During the relevant period, Complainant was employed as a Workforce Management Specialist.
Complainant was qualified for the Budget Analyst position, was considered but was not selected
for the position, and another applicant outside of Complainant’s protected groups was selected.

According to Agency management, Complainant was not selected because she did not have
direct budget experience but instead supported and assisted the budget process. The AJ noted
that Complainant’s budget experience was indeed limited to providing support or assistance to
the budget process, and that she did not have direct responsibility in the budget process. In
contrast, the selectee’s experience included direct responsibilities of running and executing a
budget.

Further, the AJ noted that according to Agency management, Complainant had limited
experience in budget development. Her experience supporting a budget activity was different
than experience in a budget job and running a budget for an organization.

The Chief, Business Resource Division was the selecting official for the position of Budget
Analyst. The Chief implemented an interview panel which consisted of three Agency officials
including himself. One of the panelists, the Budget Officer, developed the “Six Selection
Factors for Panel Review” used for the evaluation of candidates with input from the Chief and
another Budget Officer. Each factor could be scored from a low of 1 to a high of 10. The
maximum score for any applicant would have been a 60.

The AJ noted that it was not known exactly how many people applied for the subject position.
However, the Civilian Personnel and Advisory Center (CPAC) certified 15 applicants as
qualified and eligible for the GS-09 level, and 11 applicants as qualified for the GS-11 level. A
total of four applicants, including Complainant but not the selectee, were on both certificates.
Each panelist independently rated the 22 applicants against the Selection Factors.

After discussing the independent scores, the panel decided that the selectee was clearly the best
applicant because she was rated number one on two score sheets and number two on the third
score sheet. The panel then decided that interviews were not necessary.

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The AJ noted that because there were no interviews, it would be speculative to state what would
have happened next if the panel decided to conduct the interviews. The AJ nevertheless stated
“it is doubtful that Complainant would have made the interview list given her rankings by each
panel member.”

The AJ determined that Complainant was confused stating that she was best qualified for the
subject position. Specifically, the AJ noted that Complainant stated “I was qualified for the
position” ad “my qualifications met the criteria.” The AJ noted during her testimony,
Complainant stated that she had 8 years of budget experience and 22 years of experience with the
Agency “but she has never held a budget position.”

The AJ stated that a review of Complainant’s resume reveals the following experiences for her
last three positions: ‘uses extensive data from budgetary, technical, and procedural guides to
assist (emphasis added) in the development, preparation, and monitoring of the annual budget;’
‘monitored budget...;’ provide budget assistance…;’ and ‘coordinated the BRD annual budget
activities assisting (emphasis added) in the development, planning and execution.’”

The AJ stated that in her resume, the selectee’s experience indicates the following:“’develop
internal budgets…’ and ‘perform in-depth internal budget request’…this is exactly what the
panel, two of whom were budget officers, honed in on. Thus, while Complainant was qualified
for the position and actually considered more qualified than approximately half of the candidates,
she cannot be considered plainly superior to the Selectee.”

The selectee was selected for the subject position with an effective date of November 4, 2012.
The record reflects that approximately nine months later on August 7, 2013, it was discovered by
CPAC that the selectee was not eligible to compete for the subject position and should not have
been placed on the referral list. The selectee was a term employee and the vacancy
announcement was open to employees in the competitive service with career conditional status.
The AJ noted that the Agency acknowledged that an administrative error occurred and was not
discovered for 9 months. The error had nothing to do with Complainant’s race or age.

The AJ determined that the Chief and the panel were not responsible for determining eligibility
for the Budget Analyst position, which was a function of the Human Resources personnel staff.
The Chief and the selection panel were not responsible for creating the certificate of eligible
candidates list. Moreover, neither the Chief nor the panel have a role in determining eligible
candidates.

In October 2013, the selectee was removed from the Budget Analyst position. The AJ noted that
the Agency had plans to re-compete the position as soon as budgetary restrictions were lifted.

On or about September 25, 2013, Complainant retired from Agency under the Voluntary Early
Retirement Authority (VERA) and Voluntary Separation Incentive Pay (VSIP).

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During his testimony, the Chief, Business Resource Division (white, over 40) stated that he was
the selecting official. The Chief stated that he had one of the two Budget Officer develop the six
selecting criteria as follows :“the ability to work independently, managing simultaneous
expenses for deliverables to customers for upward reporting requirements, including gathering
data, documenting, presenting, and defending all analysis, procedures, and results. So, I looked
at the resume to see if [applicants] had any experience in doing those type of things in the area of
budget.”

The Chief explained that he selected the selectee for the subject position because she was best
qualified. The Chief stated that he did not select Complainant because she did not have direct
budget experience. He noted that Complainant had supporting budget experience but she did not
perform the actual duties. Moreover, the Chief stated that Complainant’s race and age were not
factors in his decision to select the selectee for the subject position.

The Chief testified when CPAC found that the selectee should have not been referred for the
subject position, the selectee was removed from her position and CPAC “immediately processed
a collection action. Even though she had performed the duties and did the job we put in a
collection action, worked up a payment schedule for her to pay the money back, and I sent her
back where she came from.”

The Director, CPAC discovered that the selectee was ineligible, when the Director was
reviewing the file the day of the investigation. Specifically, the Director stated that the selectee
was ineligible and should not have been on the referral list because of her status as a term
employee. Furthermore, the Director asserted that there was no way that the selecting official or
panel would have been aware during the selection process because management uses the referral
list that is issued to them, and they are not privy to any discrepancies.

Based on this evidence, the AJ concluded that Complainant failed to prove, by a preponderance
of the evidence, that management’s articulated reasons for its actions were pretext masking
discrimination.

Complainant has offered no persuasive arguments on appeal regarding the AJ’s findings on the
merits. The AJ’s decision, as addressed in detail above, is well-reasoned, and the assessment that
the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven
to be pretextual, is abundantly supported by substantial evidence in the record, as referenced
above. Beyond her bare assertions, Complainant does not point to evidence of record sufficient
to prove that the reasons proffered were a pretext designed to mask the true discriminatory
motivation.

We AFFIRM the Agency's final action because the Administrative Judge’s ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of the evidence, is
supported by the record.

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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.
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
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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

April 5, 2019
Date