Jacki A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019001916 (E.E.O.C. Sep. 26, 2019)

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

Jacki A.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019001916

Hearing No. 570-2017-01141X

Agency No. 16-69197-02965

DECISION

On February 27, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 12, 2018 final order concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked for the Agency as an Equal Employment
Specialist, GS-0260-13, at the Agency’s EEO Office in Washington, D.C.

On October 18, 2016, Complainant filed a formal EEO complaint alleging the Agency
discriminated against her based on race (African-American) and age (born 1960) when, on May
17, 2016, she was informed that she was not selected to either of the two Equal Employment
Opportunity Specialist, GS-0260-14, positions within the EEO Office.

After an investigation of the complaint, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge

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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(AJ). On November 26, 2018, the AJ issued a decision by summary judgment in favor of the
Agency.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted based on a prohibited reason. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Based on the undisputed facts discussed below, the AJ corrected determined that Agency
management articulated legitimate, non-discriminatory reasons for its actions.

Complainant is a tenured federal employment in the competitive service, with a service
computation date of June 6, 2008. On August 23, 2015, Complainant was selected for internal
promotion from a GS-12 to a GS-13 EEO Specialist under Management Identification of
Candidates (“MIOC”) procedures.

On or about February 2016, Complainant submitted a timely application for two vacancies for a
GS-14 EEO Specialist advertised under Vacancy Announcement Number SIL-10000392-16-
MB-279214-M. The vacancy announcement indicated that the two selectees would serve in
positions as the Disability Program Manager and the Affirmative Employment Program Manager
at its Washington D.C. Navy Yard facility.

The vacancy announcement opened on January 26, 2016, and closed on February 1, 2016. The
vacancy announcement identified within the “Qualifications” subheading the requirement that
candidates had to “demonstrate at least one year of specialized experience at or equivalent to the
GS-13 grade level or pay band in the Federal service or equivalent experience in the public
sector.” The vacancy announcement also advised that “current Federal employees applying for
GS jobs must serve at least one year at the next lower grade level. This requirement is called
time-in-grade. All qualifications and time-in-grade requirement must be met by the closing
date of this announcement and clearly documented in your resume [emphasis in its original].”2

In her application, Complainant completed a questionnaire where she responded in the
affirmative that she had “at least one year of specialized experience equivalent to the GS-13
grade level or pay band in federal Service or equivalent experience in the private or public sector
that demonstrates developing, managing, and executing an EEO Program (e.g., Disability
Program, Reasonable Accommodation and Affirmative Action Programs), establishing

2 The vacancy announcement advised candidates that if they were selected, evidence supporting
their eligibility and qualification claims would be requested at the time of the tentative job offer
to verify eligibility and qualifications.

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organization-wide plans, policies, and procedures to identify and eliminate barriers to workplace
diversity initiatives.”

Complainant also affirmatively certified that all of her responses to the questionnaire were true
and accurate and accepted that if her supporting documentation did not support one or more of
her responses to the questionnaire that her application could be rated lower or might be removed
from further consideration.

The record further reflects that in her resume, Complainant presented her qualifications for
employment as a current GS-0260-13 EEO Specialist with the EEO Office, beginning on April
2013, where her primary duties included serving as the Affirmative Employment and Disability
Program Manager among management of other EEO programs.

Based on Complainant’s representations on her application and resume, she was presumed
qualified and her name was included within the two hiring certificates under the competitive
merit promotion list and the Schedule A merit referral list, subject to verification at a later stage
in the selection process, that were issued by the servicing Human Resources (HR) Specialist.

The Director of the EEO office (Caucasian, born 1985) was the selecting official. She stated that
she implemented a selection panel consisting of three Agency officials including herself. The
Director stated that following the interviews, she initially selected Complainant for the Disability
Program Manager (“DPM”) position “based on representations she made on her resume showing
that she had been performing similar DPM duties at the GS-13 level since April 2013. I was
then contacted a few days later by the [HR Specialist], that there was a problem with the
selection of the complainant because she did not have the one year of specialized experience at
the next lower level since she was a GS-13 for less than one year and that her resume was
confusing because it said that she had been a GS-13 longer than that.”

The Director stated that when the HR Staff pulled Complainant’s SF-50s in April 2016, her
records indicted that she had only been a GS-13 since August 2015 “and not April 2013 as
reflected on her resume.” The Director further stated that she asked about using the Schedule A
hiring authority since Complainant was on both certificates “to try to pick her up that way and
was told that she did not have the one year of specialized experience to be appointed. [Lead HR
Specialist] at DONAA, also agreed with [HR Specialist] that the complainant was not qualified.”

The Director stated that as a result, she selected a named male selectee for the Affirmative
Employment Program Manager position and a named female selectee for the DPM position
because they were best qualified. Furthermore, the Director stated that once both HR Specialists
explained the problem with Complainant’s application, “I made the best decision under the
circumstances, given my limited options, in order to find the right candidate to help me manage
one of the most challenging and sensitive programs within my portfolio.”

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The HR Specialist (Filipino, born 1983) explained when the Director returned the certificates
indicating she had selected Complainant and the named male selectee she audited the certificate
“which included pulling [Complainant’s] record from the Defense Civilian Personnel Data
System (DCPDS) to verify her qualifications. Her records showed that she had recently been
promoted to the GS-0260-13 position on August 23, 2015 [as opposed to] April 2013, as her
resume stated. The announcement closed on February 1, 2016, which meant that she had only
held the GS-13 position for less than 6 months, and not the required one-year period, when the
announcement closed. All other prior experience listed in her resume (in both the private and
public sector) showed that she did not meet the one year of equivalent experience at the GS-13
level.” Furthermore, the HR Specialist also noted that Complainant could not be appointed to the
Schedule A hiring authority “since she did not meet the minimum qualifications defined in the
announcement.”

At no point, during the investigation, before the AJ or on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons were a pretext for unlawful
discrimination. The weight of the undisputed evidence shows that Complainant was initially one
of the selectees but was subsequently disqualified because she had not met the qualification
standard of having at least one year of experience as a GS-13. The record evidence fully
supports the AJ’s conclusion that there is simply no evidence to support Complainant’s
allegation that her race or age played a role in the selection.

CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision because the preponderance of
the evidence of record does not establish that discrimination occurred.

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.
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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.
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.
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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

September 26, 2019
Date