Elroy K.,1 Complainant,v.Kevin Haugrud, Acting Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120150170 (E.E.O.C. Feb. 23, 2017)

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

Elroy K.,1
Complainant,

v.

Kevin Haugrud,
Acting Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.

Appeal No. 0120150170

Agency Nos. DOI-FWS-13-0385;
DOI-FWS-14-0021

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the September 17, 2014, final Agency decision (FAD) concerning his equal employment
opportunity (EEO) complaints 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a Regional
Property Manager, GS-12, in the Agency’s Budget, Planning, and Financial Services Division
of the Fish and Wildlife Service in Atlanta, Georgia. Complainant applied for a one-year,
temporary promotion to a Financial Management Specialist, GS-13, position advertised under
Vacancy Announcement No. R4-13-895231-CI-MP. The temporary promotion was not to
exceed one year. Complainant interviewed with a three-person interview panel, which
included the selecting official (S1). In June 2013, Complainant was notified that he was not
selected for the position.

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 August 1, 2013, Complainant filed a formal complaint (Agency No. DOI-FWS-13-0385)
alleging that the Agency discriminated against him on the bases of race (African-American),
sex (male), color (Black), age (56), and in reprisal for prior protected EEO activity when:

1. On June 27, 2013, Complainant was notified that he was not selected for the
position of Financial Management Specialist, advertised under Vacancy
Announcement Number R4-13-89523l-CI-MP.

In October 2013, Complainant learned that Team Leader duties had been removed from his
position description by his then-supervisor (S1) in 2011. Complainant claims that no one
informed him of this change and that he did not see the revised position description until his
current supervisor gave it to him in October 2013. Complainant believes that S1 removed the
Team Leader designation to minimize his career opportunities as he was the only employee in
the work unit that had had Team Leader responsibilities.

On November 19, 2013, Complainant filed a second formal complaint (Agency No. DOI-
FWS-14-0021) alleging that the Agency discriminated against him on the bases of race
(African-American), sex (male), age (56), and in reprisal for prior protected EEO activity
when:

2. On October 29, 2013, Complainant learned that management removed the role of
“Team Leader” from his position description in 2011.

At the conclusion of the investigations, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2 respectively) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested FADs. The Agency consolidated the complaints, and issued a FAD in
accordance with Complainant’s request pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal, and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), the three interview
panel members unanimously agreed that the Selectee was the best qualified candidate for the
position. The selecting official for the position, S1, stated that the Selectee was the best
qualified candidate based on her knowledge, experience, and enthusiasm for the position. S1
believed that the individual selected for the position needed an understanding of the Financial
and Business Management System (FBMS) as well as the ability to communicate, analyze, and
troubleshoot. S1 affirmed that when asked how he would deal with conflicting demands,
Complainant responded that he would look to the supervisor for guidance which suggested to
S1 that Complainant lacked the leadership qualities and initiative required for a management
position.

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A second interview panelist (IP-2) stated that he believed that the Selectee interviewed better
than Complainant and that he had personal knowledge of the Selectee’s experience with FBMS.
IP-2 asserted that Complainant did not provide enough detail about his knowledge and
experience, failed to provide examples of his budget-related experiences, and did not seem
convincing when asked why he would be the best choice for the position. By contrast, IP-2
affirmed that the Selectee gave detailed examples of previous employment experiences where
she was responsible for the budget. Further, IP-2 felt that the Selectee possessed knowledge of
the FBMS and how it interfaced with the contract writing system, PRISM. The third interview
panelist (IP-3) confirmed that the Selectee’s interview responses demonstrated that she had
more experience with reporting tools Business Objects (BOBJ) and PRISM.

All of the panel members indicated that, during the interview process, the Selectee's
communication skills exceeded Complainant's. Additionally, all of the panel members felt the
Selectee’s knowledge regarding budget and finance exceeded Complainant’s. These skills were
mentioned in the vacancy announcement as qualifications that were part of the evaluation
process for the position.

Regarding claim (2), S1 confirmed that he removed the Team Leader duties from
Complainant’s position description. S1 explained that Complainant originally had three people
that looked to him as Team Leader for day-to-day instruction and guidance. Subsequently, due
to attrition, only one person remained in the group. As a result, S1 removed the Team Leader
duties from Complainant’s position description.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Selectee was not qualified for the position because
she was returned to her original position upon the end of the one-year appointment. Further,
Complainant argues that the Selectee was preselected and that the Agency ignored evidence of
her preselection. Accordingly, Complainant requests that the Commission reverse the FAD.2
The Agency submitted a statement in opposition to Complainant’s appeal in which it urged the
Commission to affirm its final decision.

2 EEOC regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief filed on
behalf of a complainant in support of the appeal must be submitted to the Commission within
30 days of filing the notice of appeal. Complainant submitted a statement in support of his
appeal with his appeal on October 17, 2014. Complainant submitted a second statement in
support on December 19, 2014, following the Agency’s response to his appeal. The
Commission declines to consider the December 19, 2014, supporting statement as it was
untimely filed.
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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). Complainant must initially 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 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 burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Upon review of the record, and assuming Complainant established a prima facie case of
discrimination on the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. Specifically, as to his non-selection
alleged in claim (1), S1 affirmed that the Selectee was chosen for the position at issue because
of her enthusiasm for the position and her knowledge and experience, as demonstrated during
her interview. ROI-1, at 70. S1 emphasized that the Selectee better demonstrated her
experience with FBMS, while Complainant’s strength was his understanding of Fleet and
Property. Id.

IP-2 concurred that the Selectee demonstrated her qualifications and experience better through
her interview responses and that Complainant did not interview as well as the other applicants.
ROI, at 76. IP-2 affirmed that the Selectee provided detailed examples of her budget-related
experience, possessed contracting experience, and knew how the FBMS system interfaced with
the contract writing system. Id. at 77. By contrast, IP-2 stated that Complainant failed to
provide detailed examples of his budget-related experience, failed to expand or elaborate in his
interview responses, and did not seem convincing that he would be the best choice as the
FBMS manager. Id. at 76-77.

IP-3 agreed that the Selectee was the best qualified candidate based on her demonstrated
confidence, initiative, knowledge, experience, and enthusiasm for the position. ROI, at 81.
IP-3 emphasized that the Selectee exhibited a strong commitment to customer service and
provided examples of how to improve the FBMS learning experience. Id. IP-3 added that the
Selectee’s experience in making independent decisions with competing demands from various
directions and levels in the Agency would provide the foundation for her to represent the needs
of the Region. Id. at 82. Based on these reasons, the panel believed that the Selectee was the
best qualified candidate, and S1 selected her for the position.

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Finally, with respect to claim (2), S1 confirmed that he removed the Team Leader duties from
Complainant’s position description because Complainant no longer had three employees
looking to him for day-to-day instruction. ROI-2, at 83. S1 stated that due to people leaving
and taking other positions, the position was down to only having one individual on the team.
Id. As a result, S1 removed the Team Leader duties from Complainant’s position description.
Id.

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.
As to claim (1), one way Complainant can establish pretext is by showing that his
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 his non-selection claims.

In attempting to establish that the Agency’s reasons for not selecting him for the Financial
Management Specialist position were pretext, Complainant alleges that S1 preselected the
Selectee. The Commission has consistently held that preselection does not violate Title VII
when such preselection is based on the qualifications of the preselected party and not upon a
prohibited basis. See Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986) (preselection,
unless based on unlawful discrimination, is not prohibited); McAllister v. U.S. Postal Serv.,
EEOC Request No. 05931038 (July 28, 1994). While preselection may be relevant evidence
of the Agency’s motivation, the Commission does not find that the Selectee was preselected for
discriminatory reasons, based on the record before the Commission.

The Commission finds that Complainant failed to show that his qualifications for the position at
issue were plainly superior to those of the Selectee. In this case, the Selectee had attributes
that justified her selection, and the selecting official and interview panel members affirmed that
they believed the Selectee was better equipped to meet the Agency’s needs. In the absence of
evidence of unlawful discrimination, the Commission will not second guess the Agency's
assessment of the candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S.
at 259.

With respect to claim (2), Complainant claims that S1 removed the Team Leader duties to
minimize his career opportunities as retaliation. Complainant’s current first-level supervisor
stated that she believed the Team Leader duties should not have been removed and that she
believed that S1 and the Administrative Officer wanted to “get rid” of Complainant.
Complainant has failed, however, to rebut S1’s explanation that he no longer performed Team
Leader functions as he no longer provided day-to-day instruction and guidance to other team
members due to attrition.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
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Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency's actions. 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 discriminatory or retaliatory animus was a factor in its actions. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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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

February 23, 2017
Date