0120152339
11-28-2017
Kylee B,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee B,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152339
Hearing No. 430201300146X
Agency No. 124008501973
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's June 11, 2015, 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. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Support Assistant ("OA"), GS-7, in the Acquisitions Department of the Norfolk Naval Base in Norfolk, Virginia.
On August 16, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (white), national origin (European descent, ancestors from Germany and Russia), and age (56) when:
On May 15, 2012, she was not selected for the position of Administrative Support Assistant ("OA"), GS-07, Public Works Department, Little Creek Joint Expeditionary Base ("Little Creek"), in Norfolk, Virginia. (Vacancy Announcement No. EA20303-070618533MJ278755).
After investigating her complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "the Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. In reaching her decision, the AJ determined the following undisputed facts.
On March 7, 2012, the Agency posted vacancy announcements for multiple OA, GS-07 positions, including one at the Public Works Department ("PWD"), Little Creek. Complainant held that position for 10 years when it was classified as a GS-05/06, but had left a year before, to accept a GS-07 OA position in the Agency's Acquisitions Department. Complainant told the Deputy Public Works Officer, who was her first level supervisor ("S1") (white, Hispanic, age 47), as well as her colleagues, that she intended to "retire at Little Creek." Complainant believed it was understood that once "her" OA position was upgraded to GS-7 she would return. S1 notified Complainant when the Little Creek OA vacancy was announced. Complainant applied and Human Resources ("HR") placed her name on the list of eligible candidates submitted to S1, who would be the selecting official.
S1 scored the resumes himself, using a crediting plan. Complainant received the second highest score, 46, behind C1, who scored 48. Then, S1 reviewed the highest scoring resumes again, considering each candidate's resume "as a whole." He concluded that C1 was still his first choice, but changed his alternate candidate from Complainant to another candidate ("C2") because her resume "as a whole" qualified her as the alternate candidate for the position, even though her initial score, 44, based on the crediting plan, was lower than that of Complainant. C1 was 18 years younger than Complainant (age 38) identified her race as white (grandparents from Great Britain), and national origin as South American (Guyana). At age 40, C2 was 16 years younger than Complainant, and identified her race and national origin as African American. Complainant was second alternate.
Agency policy does not require interviews for positions that are not supervisory level, therefore, S1 was not required to interview the candidates. However, he decided to hold "informal interviews" with the top five candidates before submitting his selection to HR. S1 and his supervisor ("S2"), the PWD Commander, met individually with the top five candidates, including C1, C2 and Complainant. S1 did not prepare questions or score the candidates for the interviews, which lasted about 5 to 10 minutes each, as their purpose was to "allow one-on-one interaction with each candidate and assess their communication skills." S1 concluded C1 was the best fit for the position, and C2 was offered an OA position at another location.
Complainant asked S1 why she was not selected. She believed the position was hers, and she was far more experienced than either C1 or C2. Including her 10 years at Little Creek, Complainant had a total of 30 years of administrative support experience with the Agency. S1 agreed Complainant was qualified, but explained that both C1 and C2 had more "professional development," as both had earned college degrees and gained experience outside the government. Complainant noted that the position did not require a college degree, and believing her nonselection was based on discriminatory motive, Complainant contacted an EEO Counselor. Complainant and C1 were the only candidates S1 met previously, and he was aware of both Complainant and C1's approximate age, race, and national origin at the time of selection.
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged. The instant appeal followed.
STANDARD OF REVIEW
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. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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, here, Complainant's nonselection, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990).
In a non-selection case, pretext may be demonstrated by a showing that Complainant's qualifications are observably superior to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998). Further, in non-selection cases it is the Commission position that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Texas Dep't of Community Affairs v. Burdine, supra.
Here, the AJ determined that the Agency provided sufficient evidence to support its legitimate nondiscriminatory reason for S1's decision to select C1 for the Little Creek PWD OA GS-07 position over Complainant. S1 testified that his decision was based on the candidates' resumes, particularly the candidates' "professional development to include education and training beyond the specific requirements of the job." S1 felt that C1 and C2 had "greater potential due to what they had done outside the Government in the area of professional development, specifically college level training" as his reasons for finding C1 and C2 had "more potential" than Complainant. Complainant's resume states that she had taken "some college coursework" whereas C1's resume states that she had Bachelor's Degree in Civil Engineering with a minor in Construction Engineering Technology, along with a certification in paralegal business law and an extensive list of relevant college coursework. S1's emphasis on "professional development" experience is reflected in Complainant's own testimony that during their informal interview, S1 commented that the contractor in the OA position as it was waiting to be filled, had a college degree, which "was nice because they could give him more work."
The AJ clarified that although Complainant was also well qualified for the position, "the issue here is not whether Complainant was qualified...[but] whether Complainant's qualifications were clearly superior to fill the needs of the Agency." Based on Commission precedent, the AJ further explained that while Complainant had "many more years of experience in the position" years or experience does not necessarily equate to "more qualified." See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002) Likewise, the AJ, acknowledging Complainant's point that the position does not require a college degree or coursework, explained that the Commission has long held that a "certain factor used in the selection process that is not listed in the vacancy announcement or position description does not preclude its consideration in the selection process, provided it is applied uniformly to all the candidates without a prohibited, discriminatory intent." Simbulan v. Dep't of the Navy, EEOC Appeal No. 01966709 (Sept. 1, 1998) reconsideration denied, Request No. 05990034 (Jun. 16, 2000).
Finally, the AJ applied additional scrutiny when reviewing the informal interviews S1 and S2 held with the oip five candidates because it was based on subjective criteria. (e.g. C2's testimony that during her meeting with S1, he stated that the selectee "would be kind of the face" of the department, so they were trying to find "the right fit.") The AJ ultimately determined that while S1 conducted the informal interviews in an inconsistent manner, asking different questions of different candidates, the AJ determined that "there is no evidence that the selection process as a whole was conducted in an inconsistent fashion, applied criteria in an inconsistent manner, or otherwise had the purpose or effect of singling out Complainant based on her protected categories." (citing Hebert v. Dep't of the Air Force, EEOC Appeal No. 01900072 (Jan. 30, 1990) (The use of subjective criteria is not, in and of itself, proof of discriminatory motive.) While acknowledging that S1's informal interviews "could have been conducted in a more formal matter," but based on the record as a whole, did not find them indicative of a discriminatory selection process.
On appeal, Complainant argues that the AJ failed to address evidence of pretext, citing alleged discrepancies in S1's testimony about his experience as her supervisor for over a year when she was the PWD OA at the GS-06 level. The record supports that S1 found Complainant's performance "satisfactory" or "outstanding." S1 points out that he provided Complainant with a "personal/professional recommendation when she applied for the GS-7 position with the Acquisition Group... and gave her a satisfactory close out evaluation with some very positive comments." She then compares testimony in the hearing where S1 explained that he selected C1 and C2 over Complainant because despite doing a good job at the position, Complainant "was not a superstar" and he wanted to use the vacancy and an opportunity to "upgrade" to "somebody more professionally competent." However, in context, we do not find a discrepancy, and note that the AJ made no finding that S1 was not credible. S1 testified that Complainant "did a good job" and explained that he sought someone "proactive." who could take on work outside the position description, because the position had "a lot of downtime." S1 agreed with the AJ's characterization of C1 and C2 as "overqualified" and testified that he understood the OA position to be more short term as the individual would move on to advance her career.
Complainant also argues that S1 did not evenly grade the resumes, alleging that he added a new category, "professional development," which he "was never able to sufficiently define, [and] caused him to allot twice the number of points to [C1 and C2] in the category of Education/Training." The Agency contends that Complainant has not provided any evidence to support her allegation of pretext based on S1 creating outside criteria to the crediting plan. Responding to Complainant's appeal, the Agency agues that "there is no evidence in the record to indicate that the consideration of college degrees or relevant coursework was not applied uniformly to all of the candidates or as a pretext for discrimination." Moreover, the AJ addressed Complainant's disagreement with S1's emphasis on college coursework, but noted the law allows employers "broad discretion" when considering candidates. The Commission notes that the agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997).
Finally, Complainant raises previous decisions by this Commission to support her contention that S1's explanations are not credible and thus pretext for discrimination. Specifically, in Chianti v. Social Sec. Administration, EEOC Appeal No. 0720080031 (Jan. 19, 2011), the selecting official decided to only consider resumes of candidates with college degrees, which he was aware the complainant did not have, effectively removing the complainant from consideration, even though the complainant had superior qualifications than those of the selectees. She also likens her case to Brooks v. Department of Agriculture, EEOC Appeal No. 0120093647 (Aug. 12, 2011), where the selecting official explained his decision to hire the selectee was based on his performance before an interview panel that another panelist testified the selectee did not attend, as well as an "action plan" the selectee presented, even though was "not a requirement of the application and interview process, and the selectee lacked the familiarity and knowledge of the office to present an effective or useful plan." In Moresi v. Dep't of Homeland Sec., EEOC Appeal No. 0720090049 (Mar. 29, 2010), which Complainant also cites, we found pretext where the selecting official created the selection criteria, did not conduct interviews, and an organizational chart contained the selectee's name in the position before the selection was made. Unlike the selecting officials in Moresi and Brooks, there is no evidence indicating S1's explanations for his decision are false. Rather, S1 gives more weight to what he terms "professional development" than Complainant would. It also follows that Complainant's argument that her qualifications were "objectively superior" to those of the selectees is not supported in the record, given S1's preference for more education. For this reason, Chianti also cannot apply.
Having considered the evidence of record, the Commission finds that complainant has not established pretext. Specifically, we note that complainant has not demonstrated that his qualifications for the position were "observably superior" to those of the selectee's or presented other evidence to establish pretext. Therefore, we find that complainant failed to demonstrate that the agency's stated reasons for its action were pretext to mask discriminatory animus.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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. 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.
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
November 28, 2017
__________________
Date
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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0120152339
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