Virginia K.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jun 12, 2019

0120181505 (E.E.O.C. Jun. 12, 2019)

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

Virginia K.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181505

Hearing No. 570-2014-1313X

Agency No. BOP-2013-01229

DECISION

On March 30, 2018, 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
March 7, 2018 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Correctional
Program Specialist, Secure Oversight Monitor, GS-12, at the Agency’s Rivers Correctional
Institution in Winton, North Carolina.

On January 2, 2014, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her sex (female) when on September 6, 2013, she learned

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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that she had not been selected for the Correctional Program Officer (Senior Secure Institution
Manager) position announced under Vacancy Announcement No. CO-2013-0225.2

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.
The AJ assigned to the matter held a hearing on August 29, 2017 and issued a decision on
November 22, 2017.

The record reveals that Complainant applied for and made the best qualified list for the position of
Manager, Senior Secure Institution under Vacancy Announcement No. CO-2013-0225 along with
seven other applicants. Complainant had been serving for seven months in the position at issue in
an acting capacity. Management officials reviewed application packages, performance ratings,
and contacted supervisory references. No interviews were conducted. Complainant’s Acting
Supervisor provided a “voucher” for Complainant. The Acting Supervisor did not recommend
Complainant for the position. The Administrator of the Privatization Management Branch
received and reviewed the application packages, performance ratings, and supervisory references.
Based on her review, the Administrator referred her recommendations to the Selecting Official,
the Senior Deputy Assistant Director. The Administrator recommended a male candidate who had
served as a Department Head in the Agency as the best qualified candidate. Based on the
recommendation, the Selecting Official selected the recommended candidate as the selectee.

In the decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for
Complainant’s nonselection. The Acting Supervisor served as Complainant’s supervisory
reference for the selection process. According to the Acting Supervisor, Complainant failed to
fulfill her affirmative obligation to promptly report any personal observations and/or suspicions
that her former Supervisor was intoxicated while on the job. The AJ noted that the Acting
Supervisor assumed that position because the prior Supervisor had a work-related incident
involving the consumption of alcohol at a firing range. The Acting Supervisor testified that
Complainant stated that she guessed she should have reported the Supervisor’s intoxication earlier.
The Acting Supervisor also testified that Complainant’s written reports needed improvement in
terms of the amount of information provided and grammatical mistakes. By contrast, the Acting
Supervisor testified that the selectee received a strong endorsement from his supervisor and had
“Outstanding” performance ratings as compared to Complainant’s lower “Exceeds” ratings. As a
result, the Acting Supervisor did not recommend Complainant for the position and Complainant
was not subsequently selected by the Selecting Official.

2 The Agency dismissed an additional claim regarding a temporary promotion pursuant to 29
C.F.R. § 1614.107(a)(2) as untimely raised with an EEO Counselor. Complainant did not
challenge this dismissal while the matter was before the EEOC Administrative Judge nor on
appeal; therefore, the Commission will not address it herein. Additionally, Complainant withdrew
the basis of race (African-American) prior to the commencement of the hearing.
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The AJ next determined that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. For example, the AJ found that Complainant’s testimony that she was directed to
provide on-the-job orientation to the selectee after the selection was made was not credible proof
of sex discrimination. In addition, the AJ found that Complainant’s self-serving testimony that
her qualifications were equal or superior to the selectee did not establish that sex was a
consideration in the selection process. As a result, the AJ found that Complainant had not been
subjected to discrimination as alleged.

The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she was clearly more qualified for the position at issue than
the selectee. Complainant states that the selectee had no experience in contracting in contrast to
her years of experience in contracting. Complainant points out that no female has been placed in
the position at issue in the years leading up to her nonselection.

Complainant states that for the seven months leading up to her application for the Senior Secure
Institution Manager position, she acted in that position while serving in her regular position as a
Secure Oversight Monitor and the Acting Supervisor gave her positive feedback about her
performance. According to Complainant, no one criticized her performance in the acting position
for any reason. Complainant argues that the Agency did not present substantive evidence to
support the Acting Supervisor’s assertion of her alleged inability to provide accurate and timely
information. Complainant maintains that the Acting Supervisor did not indicate until the hearing
that she relied on her actions with regard to the alcohol-fueled incident with her former Supervisor.

With respect to her qualifications in comparison to the selectee’s qualifications, Complainant states
that unlike the selectee, she had the exact contracting training called for by the position description
for the position at issue. Complainant challenges the Agency’s position that the selectee had
superior educational experience. As for the Agency’s reliance on the selectee having a higher
performance rating, Complainant argues that she fell only one point below an “Outstanding” rating
for 2013. Complainant maintains that her “Exceeds” rating was attributable to the fact that the
department was experiencing budget constraints and it would have had to provide her with a
quality step increase had she received an “Outstanding” rating. Additionally, Complainant
criticizes Agency officials for not considering her supervisory experience. Finally, Complainant
contends that the Agency preselected the selectee for the position as the Acting Supervisor
admitted at the hearing that she was not going to be selected for the position at issue. Accordingly,
Complainant requests that the Commission reverse the final order.

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STANDARD OF REVIEW

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. Nat’l Labor Relations Bd., 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).

ANALYSIS AND FINDINGS

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). She must generally 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 prima facie inquiry may be dispensed with where the Agency articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995)

Here, substantial record evidence supports the AJ’s finding that the Agency articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the position at issue. The Acting
Supervisor testified that she did not recommend Complainant because she had concerns after
Complainant failed to fulfill her affirmative obligation to promptly report any personal
observations and/or suspicions that her former Supervisor was intoxicated while on the job.
Further, the Acting Supervisor testified that Complainant’s written reports needed improvement
in terms of the amount and accuracy of information provided and included grammatical mistakes.
The Administrator affirmed that she determined that Complainant was not the best qualified
candidate based on her review of the application packages, performance reviews, and supervisory
reference checks.
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Based on her review, the Administrator concluded that the selectee was the best qualified candidate
based on his supervisory experience as a Department Head, his “Outstanding” performance
ratings, and above average results on all skills/ability levels through the reference check process.
By contrast, Complainant had lower “Exceeds” performance ratings and she was rated as average
in the majority of skills/ability levels through the reference check process. Additionally, the
Administrator believed that the selectee had stronger supervisory experience. As a result, the
Administrator recommended the selectee as the best qualified candidate and the Selecting Official
chose the selectee.

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. 6,
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

Complainant contends that she was more qualified than the selectee and that preselection occurred.
The Commission notes that even if preselection occurred, it would not be unlawful unless
Complainant can show that the preselection was driven by discriminatory or retaliatory animus.
See Nickens v. Nat'l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996).
Preselection, per se, does not establish discrimination when it is based on the qualifications of the
selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request
No. 05931038 (July 28, 1994).

The Commission finds that substantial record evidence supports the AJ’s finding that Complainant
failed to show that her qualifications for the position at issue were plainly superior to those of the
selectee. In this case, the selectee had attributes that justified his selection, in particular his
supervisory experience, his “Outstanding” rating on his 2013 performance evaluation, and a strong
recommendation from his supervisor. In the absence of evidence of unlawful discrimination, the
Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx.
Dent. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

The Commission finds no persuasive evidence that Complainant's sex was a factor in the Agency’s
selection. Complainant argues that the Agency failed to take into account her supervisory
experience. However, even if Complainant is correct on this point, there is no indication the
Agency’s failure was due to her being female. Complainant points out that she was only one point
short of an “Outstanding” performance rating, but nonetheless it is clear that the selectee had an
“Outstanding” rating. Complainant maintains that she had a great deal of contracting experience
and the selectee lacked contracting experience. The record indicates that Complainant is correct
that she had a significant advantage in contracting experience, but we observe that contract
experience was not listed as a mandatory qualification on the vacancy announcement.

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Further, we find that Complainant has not refuted the Agency’s assertion that her written reports
needed improvement in terms of the amount of information provided and grammatical mistakes.
Finally, we discern no persuasive evidence to support Complainant’s contention that preselection
occurred. 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
discrimination was a factor in its action. Complainant failed to carry this burden. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant has
not established that she was subjected to discrimination as alleged.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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.
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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 12, 2019
Date