Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Aug 7, 2013

0120121461 (E.E.O.C. Aug. 7, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120121461

Agency No. DEA-2010-00285

DECISION

On January 28, 2012, Complainant filed an appeal from the Agency’s January 4, 2012, 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Investigative
Assistant with the Drug Enforcement Administration’s Chicago Field Division, Group 24, in
Rosemont, Illinois. The Agency posted an opening for an Assistant Administrative Officer,
GS-0341-11/12, under Vacancy Number F-DEA-CH-10-027-MP, from February 1, 2010,
through February 15, 2010. Seventeen applicants applied for the position at the GS-11 level
and seventeen applicants applied for position at the GS-12 level. Complainant applied for the
position at the GS-11 level only. Complainant and one other person (Selectee) were
interviewed for the position at the GS-11 level on February 23, 2010. The interview panel
consisted of a Program Analyst (Person A), the Assistant Special Agent in Charge (Person B),
and the Administrative Officer (Person C). The Selecting Official was the Acting Special
Agent in Charge (Person D). The Agency informed Complainant on February 25, 2010, that
she was not selected.

Complainant filed an EEO complaint dated April 6, 2010, alleging that the Agency
discriminated against her on the bases of race (Caucasian) and age (51) when:

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Complainant was not selected for the position of Assistant Administrative Officer
(AAO).

On January 4, 2012, the Agency issued a final decision. The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant argues that pre-selection played an important role during the selection
process. Specifically, Complainant claims that upper management needed to remove the
Budget Officer from her position and the only way to accomplish this was to remove the
Selectee from her current position. Moreover, Complainant notes that the interview panel had
seventeen candidates to select to interview and they only choose two. According to the
KSA/Competency Ratings for GS 11, Complainant notes she was rated with a 94 with five
candidates scoring higher and the Selectee was rated 91 with twelve candidates scoring higher.
Complainant contends that if pre-selection was not a factor, more applicants should have been
selected for an interview.

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”).

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). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 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 Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

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Complainant claimed that she had been a DEA employee since 1978; however, the Selectee has
been with the DEA for approximately five years. Complainant said that the Selectee lacked
her “range of experience,” as the Selectee had worked only in the Fiscal section. In
comparison, Complainant said, she had worked one year in Regional Intelligence, seventeen
years in the Fiscal Section, and thirteen years as an Investigative Assistant.

In addition, Complainant alleged that the Selectee’s selection could have been the result of
management's attempts to appease the Budget Officer’s desire to be reassigned. Complainant
explained that the Budget Officer no longer wanted to perform her duties but wanted to remain
in the Fiscal Section. Thus, Complainant stated that this could be achieved only if the Selectee
was reassigned to another position. Complainant noted that several weeks after the Selectee’s
promotion to the AAO position, the Budget Officer was reassigned to the Selectee’s former
position.

Complainant averred that in her current position as Investigative Assistant for Group 24, she
has been assigned many collateral duties including working with the Administrative Section
and Fiscal Section. Complainant also stated that since her assignment to the O'Hare/Rosemont
Office in 1996, she has performed all aspects of the Administrative Services, including
performing the duties of the Administrative Officer and the AAO at the offsite level, in
addition to her assigned duties as the Investigative Assistant.

The Agency established legitimate, nondiscriminatory reasons for its selection decision. Each
member of the interview panel explained that they believed the Selectee was a better candidate
for the AAO position. In her affidavit, Person A states she recommended the Selectee based
on the Selectee’s prior experience, which included property management, human resources
management experience, and contracting experience, as well as the fact that the Selectee held a
purchase warrant. Person A also stated that Complainant “did not have formal property
management or contracting experience” and that her experience was a different type than
required by the AAO position.

In his affidavit, Person B noted that the Selectee “had a background of UFMS [Unified
Financial Management System] in place.” Person B also indicated that he was impressed with
the Selectee’s application and interview, which displayed her leadership and “excellent
communication skills.”

In his affidavit, Person C stated that as an Administrative Officer he is required to have a
contracting warrant. Person C noted the Selectee had a contracting warrant in her previous job
and he stated the Selectee’s contracting experience was “an invaluable asset.” Person C also
stated that the Selectee had experience as a budget analyst, and had served as acting
supervisor. Conversely, he noted that Complainant did not have contracting experience.

In their affidavits, all three panel members denied having preselected the Selectee for the
position. The record reveals that the Selecting Official had retired by the time of the
investigation. However, the record contains a copy of the EEO Counselor’s Report in which
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the Selecting Official stated that he based his selection on the interview panel's unanimous
recommendation that the Selectee was the best candidate.

In her rebuttal, Complainant disputed the interview panel's assessment of her experience and
skills. Complainant said that for the past 14 years, she has performed the administrative duties
of property management, fleet management, personnel, and administrative support to fiscal,
procurement, and security and enforcement. She also stated that from 1979 to 1996 she was
assigned to the Fiscal Office and was promoted to a Budget and Accounting Analyst in 1987.
She noted that as a Budget and Accounting Analyst, she supervised four employees and
supervised the day-to-day operation of the Fiscal Section including the preparation and
distribution of the Chicago Field Division budget. Complainant alleged that the Selectee’s
experience with the UFMS was misleading, since she only performed functions that applied to
the Fiscal Section. Complainant said that although she did not have formal training for the
UFMS, she was familiar with the policies and procedures of the system because she prepares
and submits procurement and payment documents through the system as a part of her current
responsibilities. Complainant also noted that the previous Assistant Administrative Officer
stated in her interview with the EEO Counselor that she was familiar with the USMS but did
not use the system much. Complainant noted that Person C stated that he intended to have the
Selectee more involved with the USMS system. Complainant noted that the Selectee’s
experience with the USMS system was in another discipline and would require her to learn to
use the USMS for the purposes of the administrative section. Complainant claimed that Person
C’s implication is that while others can learn how to do this, Complainant is incapable of
learning.

Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its
actions. Other than her bare assertions, Complainant failed to produce any evidence that the
Agency’s asserted reason for not hiring her, that the Selectee was more qualified based on her
demonstrated contracting experience, formal property management experience, and her
established background in UFMS, which Complainant did not possess, was a pretext for
discrimination. In addition, we find no evidence to support Complainant’s contention that
Person C implied that Complainant was incapable of learning new duties. Moreover, we find
no evidence to show that the Agency was required to interview additional candidates beyond
Complainant and the Selectee.

With regard to her claim of pre-selection, we note that there is no evidence of pre-selection.
Specifically, we find Complainant produced no evidence to support her claim that the Budget
Officer’s transfer to another position somehow played a role in the selection of the Selectee.
However, we note that even if Complainant's allegations were true and the Selectee had been
selected for the AAO position in order to enable the Budget Officer to assume another position,
that would not show that Complainant was discriminated against based on her race or age.
Additionally, with regard to her claim that she should have been selected because she had
worked at the Agency for over 30 years, we note that just by having more years of service than
the Selectee did not make Complainant a better qualified candidate.

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In the present case, we find that Complainant failed to show that her qualifications for the
position were plainly superior to the qualifications of the Selectee. Upon review, we find
Complainant failed to show by a preponderance of evidence that the Agency's actions were
based on discriminatory animus.

CONCLUSION

Accordingly, the Agency’s final decision 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.

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.
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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
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

August 7, 2013
Date