Complainant,v.Chuck Hagel, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jun 5, 2013

0120120781 (E.E.O.C. Jun. 5, 2013)

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

,
Complainant,

v.

Chuck Hagel,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120120781

Hearing No. 550-2011-00492X

Agency No. DLAN-11-0020

DECISION

On November 28, 2011, Complainant filed an appeal from the Agency’s November 10, 2011,
final action concerning his 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Organizational
Specialist, GS-11, at the Agency’s Defense Logistics Agency (DLA) Distribution San Joaquin
in Stockton, California. The Agency posted a vacancy announcement for a Management
Analyst GS-11 position with non-competitive promotion potential to the GS-12 level for the
DLA in Stockton from September 28, 2010, to October 6, 2010. Complainant applied for the
position online and was found qualified. A total of 14 candidates, including Complainant,
were referred to the Selecting Official (Person A) Supervisory Site Director, DLA Distribution
Enterprise Support. Person A was the Chairperson of the selection panel and appointed the
Deputy Site Director, DLA Installation Support San Joaquin (Person B) and the Energy
Manager (Person C) to serve as panel members. No interviews were conducted. Each panel
member independently reviewed the candidates’ resumes and rated them based on the position
description and the knowledge, skills, and abilities (KSAs) listed in the job announcement.
After reviewing the 14 candidates’ resumes, each panel member ranked their top five
candidates. Complainant was not listed in the top five ranking by any of the panel members.
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On October 25, 2010, the panel members met to discuss their individual rankings and
unanimously agreed to select the Selectee.

Complainant filed an EEO complaint dated November 18, 2010, alleging that the Agency
discriminated against him on the bases of race (Hispanic), national origin (Mexican), and age
(58) when:

On November 5, 2010, Complainant was not selected for a Management Analyst
position, GS-0343-11/12 advertised under Job opportunity announcement (JOA) DDJC-
10-390382-MP.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did
not object, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on November 3, 2011.

In her decision, the AJ found the Agency articulated legitimate, non-discriminatory reasons for
selecting the Selectee rather than Complainant. The AJ noted Person A stated the panel
members all rated the Selectee highly on the three KSAs. Specifically, Person A stated the
Selectee demonstrated in his resume that he had budget, financial, and analytical experience
and knowledge of DES utility/energy billings. Conversely, the panel found Complainant did
not demonstrate he had specific experience related to energy consumption or utilities data.

The AJ noted that in an attempt to show pretext, Complainant claimed he was better qualified
for the position at issue than the successful candidate. Specifically, the AJ noted he stated the
Selectee was less qualified because he had less years of experience as a Management Analyst
than Complainant. The AJ found no evidence in the record raising an inference that
Complainant’s qualifications were so plainly superior to those of the Selectee to indicate
pretext. The AJ stated although it was true that Complainant possessed more years of
experience than the Selectee, it was unrebutted that the Selecting Official valued other
qualifications than years of experience. Specifically, the AJ noted the Selecting Official sought
direct experience in certain areas of analysis which Complainant did not possess, or failed to
state on his resume.

The AJ recognized Complainant also alleged the Selectee was pre-selected by Person A and
“groomed” for the position at issue. The AJ noted the record reflected at the time of the
selection, the Selectee worked within Person A's unit and was a direct report. The AJ found
the record also reflects that prior to the selection, the Selectee assumed and was trained on
some of Co-worker X’s duties at Person A’s request. However, the AJ noted Co-worker X
stated the transfer of duties and training on the duties was initiated in response to her pending

1 Complainant originally included the basis of sex in his complaint; however, he subsequently
withdrew the basis of sex during the investigation.
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retirement. Moreover, the AJ noted that the Commission has held that pre-selection of an
applicant, if it did happen in this case, was not unlawful if it was not based upon a
discriminatory motive. The AJ determined there was no evidence of record that the Selectee
received training by his co-worker on some of her duties based on his race, national origin, or
age.

The Agency subsequently issued a final action on November 10, 2011. The Agency’s final
action fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

On appeal, Complainant argues he is more qualified, more educated, and more trained than the
Selectee. Complainant notes that all three Panel Members worked for the DLA Installation
Support (DESJC). He questions why the Agency did not get someone from outside their
organization to serve on the selection panel.

Complainant also states that since they worked in the same organization, Person B and Person
C knew what type of work was required for this position and they also knew the type of work
the Selectee was doing. Complainant states that Person B and Person C relied on personal
knowledge of the Selectee’s work rather than what was in his resume and Complainant argues
that this was improper. Complainant also cites the fact that the Selectee stated he would
receive his Masters Degree in December 2010; however, he had not yet received it at the time
he submitted his application in October 2010. In addition, Complainant alleges that DESJC's
Hispanic population does not have an adequate Hispanic supervisor to employee ratio.

Complainant also claims that had interviews been held, the true outcome of the Selectee’s
experience, skills, and qualifications would have been exposed. Complainant claims that his
experience, skills, qualifications, and education would have stood above the Selectee.
Complainant states that Person C acknowledged she was not a subject matter expert and he
argues that she should have removed herself from the panel. Complainant also notes that
Person C stated that Complainant’s resume reflected that he reviewed monthly budgets and
developed budget plans, but she noted this was in 1998. Complainant claims that Person C’s
assumptions lead him to believe that she considered his experience too old for the position.
Finally, Complainant states that the Selectee was provided training for the purpose of
improving his skills and was granted preference for this position.

The Agency filed a brief in response to Complainant’s appeal. With regard to Complainant’s
contention that other officials should have been on the panel, the Agency notes the person
chosen for the position would be working in DESJC and having panelists from DESJC was
reasonable since they had the most knowledge of DESJC operations and duties. Thus, the
Agency states DESJC panelists would be the most capable of assessing whether candidates
would be able to perform the required job duties. Moreover, the Agency notes that
Complainant acknowledged in his affidavit that Person C knew what type of work was required
for the position.

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With regard to Complainant’s contention that interviews should have been conducted for this
position, the Agency notes that Complainant does not point to any Agency policy or procedure
that was violated. Rather, the Agency states that its policies only required interviews of
candidates for management positions and the Agency notes the position at issue was not a
management position.

In addition, the Agency states that Complainant’s mere disagreement with the results and his
own subjective assessment of his qualifications does not prove discrimination. The Agency
noted that Person A stated that Complainant lacked energy consumption and utilities
experience. The Agency states this was a legitimate consideration, considering that analyzing
energy consumption data was a major duty of the position. The Agency also states in looking
at the resumes, Complainant’s qualifications are not so “plainly superior” as to demonstrate
pretext. The Agency notes the Selectee’s resume was far more detailed than that of
Complainant's and shows more relevant, related experience. The Agency states it is well
established that just having more years of service alone does not make someone more
qualified, and that the relevance of the experience must be considered. The Agency states
Complainant has not disputed that the Selectee was serving in a related position at the time of
the selection. The Agency argues it is reasonable to prefer a candidate who was already
working within DESJC in the same position and already doing the same kind of work. Finally,
the Agency states that even if the Selectee was preselected, that is not unlawful so long as it is
not based upon a discriminatory motive. The Agency notes Complainant has failed to show
that the Selectee was preselected based on his race, national origin, or age.

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. (November 9, 1999) (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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Fumco Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

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Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute; nor are there any credibility determinations at issue.
Additionally, we find the record in the present case was fully developed. In the present case,
the Agency articulated legitimate, non-discriminatory reasons for selecting the Selectee over
Complainant, that he was rated higher than Complainant by all three panel members with
regard to the KSAs. We find Complainant failed to prove by a preponderance of evidence that
he was subjected to discrimination based on his race, national origin, or age. With regard to
his contention that the Agency decided to pre-select the Selectee, we note that pre-selection
itself does not constitute prohibited discrimination. We find Complainant’s contention that had
interviews been held he would have done better than the Selectee to be speculative. In
addition, we find Complainant failed to show that the Agency’s decision not to hold interviews
was discriminatory. Moreover, we find Person C’s statement that Complainant reviewed
monthly budgets and developed budget plans, but that this was in 1998, was reflective of the
information on Complainant’s resume. We find the statement was not evidence of age
discrimination. Finally, we find Complainant failed to show that his qualifications were
plainly superior to those of the Selectee.

CONCLUSION

Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 5, 2013
Date