Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

May 1, 2014

0120122283 (E.E.O.C. May. 1, 2014)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120122283

Hearing No. 560-2011-00067X

Agency No. CRSD-2010-01008

DECISION
Complainant filed an appeal from the Agency’s March 15, 2012 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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s Office of the Chief Information Officer facility in St.
Louis, Missouri. On May 3, 2010, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of sex (female) when:

On November 6, 2009, Complainant learned she was not selected under vacancy
numbers 10-ITS-001P and 09-ITS-09 for the position of International
Technology Specialist, Infrastructure Operations Division/Applications
Operations Branch (ITSIIOD/AOB) Team Lead.1

1 The record shows that the Agency advertised twice for the same position after errors
regarding the qualification of the candidates in the review and rating process were discovered
by the reviewing agency, Bureau of Public Debt.
0120122283

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
October 17, 2011, and issued a decision on February 6, 2012.

In her Decision, the AJ found that Complainant applied and was found qualified for the
identified position. Complainant learned that she was not selected on November 6, 2009. The
AJ found that Complainant inquired from the selection official, S1, to learn why she was not
selected, and why S1 selected E1 to fill the position. S1, the AJ found, told Complainant that
he did not review the applications that had been submitted to him by the reviewing officials at
the Bureau of Public Debt, an agency contracted to perform human resource functions for the
selection process. The AJ noted that S1 explained to Complainant that he considered all of the
applicants whose names appeared on the selection certificate to be technically qualified. The
AJ noted that during the interview process, S1 asked each candidate the same eight questions
not related to technical aspects of the job, and for which no right or wrong answer existed.
The AJ found that, as explained to Complainant, S1 selected E1 because E1 had more
experience with budget and customer service and more experience as a supervisor.

The AJ considered Complainant’s claim that S1’s reasons were a pretext for discrimination
because E1 did not have the experience required in the vacancy announcement. Specifically,
candidates were required to have experience with the deployment of 50 or more web based
applications. Complainant claimed, the AJ noted, that S1 should have known based upon his
knowledge of the work that E1 did, that E1 had overseen the deployment at most, of only 47
applications. The AJ found that S1 had no obligation to conduct an independent investigation
to determine whether any of the statements made by the candidates regarding their experience
required for the position were true. Additionally, the AJ found that Complainant did not show
that her experience in budget, supervision, and customer service was plainly superior to E1’s
experience. The AJ found that S1 considered E1’s positions with titles including Manager and
Director since 1991 to be positions that provided him with supervisory experience. The AJ
found that while Complainant had supervisory experience, her most recent supervisory role
ended in 2004.

Further, the AJ considered Complainant’s claim that E1 had been preselected for the identified
position. The AJ found that evidence of preselection did not prove that S1’s selection was
based on discrimination. The AJ concluded that Complainant did not show that S1’s reasons
for his selection were a pretext to mask discrimination. The Agency subsequently issued a
Final Order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

On appeal, Complainant states that the evidence does not support the AJ’s findings of fact and
conclusions of law. Specifically, Complainant challenges the AJ’s finding regarding the duty
of S1 to inquire into inconsistencies or untrue statements in E1’s application that S1 should
have known were untrue. Complainant also states that S1’s reasons for selecting E1 should not
be believed based upon the knowledge, skills, and experience clearly stated in Complainant’s
0120122283

3
application. Complainant states that her qualifications for the identified position far exceeded
E1’s qualifications and that S1’s reasons for not selecting her were a pretext to mask sex
discrimination.

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. (November 9, 1999).
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 he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. 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 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
In nonselection cases, a complainant can establish pretext by showing that her qualifications
are “plainly superior” to those of selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir.
1981).

In the instant case, we find that substantial evidence supports the AJ’s Decision. Specifically,
we find that Complainant possessed experience with budget, customer service, and in
supervisory positions. We concur with the AJ that S1 was not required to independently
determine whether E1’s statements (or the contents of any candidate’s application) concerning
the number of application deployments were accurate after E1 had been deemed qualified for
the position by the personnel conducting the initial review of the candidate application
materials.
0120122283

4
We note that Complainant herself admits that S1 was familiar with E1’s work from S1’s
previous employment with the same contractor for whom E1 worked at the time of the
selection process. We find no dispute, nor evidence of pretext, that S1 used his knowledge of
E1’s work as well as Complainant’s work (from supervising Complainant) in addition to the
information each applicant presented during the selection process. We find that Complainant
failed to show that the Agency's reasons for selecting El were false or a pretext for
discrimination. We find that Complainant failed to establish that her qualifications for the
position were plainly superior or that the Agency's action was motivated by discrimination.
See Wasser v. Department of Labor

, EEOC Request No. 05940058 (November 2, 1995).
Additionally, we note the evidence shows that S1 was responsible for only one other selection
process from the time he first joined the Agency through the time of the hearing of
Complainant’s complaint. S1 selected another male candidate in that selection process. We
find, as did the AJ, that sole selection is insufficient to show a pattern of discrimination based
on sex. We find no evidence that Complainant’s sex, rather than S1’s previous working
relationship and knowledge of E1’s work, motivated S1 to make the selection he did.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, finding no
discrimination.

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
0120122283

5
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
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

Date
May 1, 2014