Leona L.,1 Complainant,v.Eric D. Hargan, Acting Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Nov 17, 2017

0120151554 (E.E.O.C. Nov. 17, 2017)

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

Leona L.,1
Complainant,

v.

Eric D. Hargan,
Acting Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.

Appeal No. 0120151554

Hearing No. 443-2014-00032X

Agency No. HHS-IHS-0049-2013

DECISION

On March 30, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 20, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal
Employment Opportunity (EEO) Specialist, GS-0260-11, with the EEO Office, Aberdeen Area
Office, Northern Plains Region, Indian Health Service (IHS), located in Aberdeen, South
Dakota. On January 11, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her based in reprisal for prior protected EEO activity when she was not
selected for the following positions: (1) Secretary, Position Number EB9827; (2) Billing
Technician, Position Number EB2105-2106; (3) Inventory Management Specialist, GS-2010-9,
Position Number EB9804; (4) Inventory Management Specialist, GS-2010-9, Position Number

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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EB9804; (5) Financial Management Analyst, GS-0501-9/11, Position Number EB2118; (6)
Human Resources Specialist (Placement), GS-0201-9/11, Position Number EB2118; (7)
Secretary, FS 0318-5, Position Number EB5102; (8) Health Systems Specialist; (9) Health
Systems Specialist; (10) Purchasing Agent, GS-1105-10; (11) Health Systems Specialist
(Contract Health), GS-671-7/9/11, Position Number EB9905; and (12) Inventory Management
Specialist, GS-2010-7/9, Position Number EB2112.

After 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 timely requested a hearing. After both parties submitted motions for a
decision without a hearing, the AJ assigned to the case issued a decision without a hearing on
January 14, 2015. 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.

FACTUAL BACKGROUND

Complainant was employed by the Bureau of Indian Affairs (BIA), Department of the Interior, as
a Legal Administrative Specialist (Probate), GS-0901-07, in the Cheyenne River Agency in
Eagle Butte, South Dakota, from 2005 through August 2008. She resigned from the BIA
because she claimed that her first-level supervisor (S1) was harassing her. She filed union
grievances with the BIA, but not an EEO complaint. Complainant filed an EEO complaint
against the Agency based on gender in 2011 regarding a promotion and her performance
appraisal.

Complainant argues she was retaliated against based on her prior protected activity when she was
not selected for 12 different positions starting in 2008 and continuing through 2013.
Complainant attested that on or about October 10, 2012, she first became aware that retaliation
may be the reason for her non-selections after she was told by a colleague, a GS-14 Complaints
and Adjudication Manager, in the Office of Diversity Management and Equal Employment
Opportunity, in Rockville, Maryland (C1) that a GS-15 Chief Executive Officer, in the Cheyenne
River Service Unit (Indian Health Service Hospital), located in Eagle Butte, South Dakota
(CEO1)2 made a comment that Complainant was not being considered for positions at IHS
because of “her history at the BIA.” At this point in time Complainant had applied for seven
jobs at IHS including: Secretary in 2008; Billing Technician in 2008; Inventory Management
Specialist in July 2011; Financial Management Analyst in July 2011; Human Resources
Specialist in October 2011; another Secretary position in February 2012; and another Inventory
Management Specialist position in May 2012.

When Complainant became aware of the comment made by CEO1, Complainant contacted an
EEO Counselor on November 9, 2012, and subsequently filed a formal complaint on January 11,

2 CEO1 states she does not have a professional work relationship with Complainant but she is
aware Complainant provides EEO services to her facility and she believes she may have had
email communication with Complainant on occasion related to other EEO matters.
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2013. Complainant alleges that after she contacted an EEO counselor in the current action she
was further retaliated against when she was not selected for five additional jobs for which she
applied including: Health Systems Specialist in December 2012; Purchasing Agent in March
2013; Health Systems Specialist when the same position was re-advertised in April 2013; Health
System Specialist, Contract Health, in April 2013; and Inventory Management Specialist in April
2013.

ANALYSIS AND FINDINGS

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).

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.

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Claim 1 – Secretary Position

The AJ noted in her decision that Complainant applied for the Secretary position in 2008. At the
time of the selection, the selecting official for this position (SO1) had never had a professional
working relationship with Complainant, and had never been in her chain of command.
Complainant attested that she believed SO1 was aware of her prior protected activity because:
(1) SO1 was aware of Complainant’s resignation from the BIA by word-of-mouth because he
lived in Eagle Butte which was a small community where the Cheyenne River Agency was
located; (2) SO1’s brother was Tribal Chairman and SO1’s brother had an existing personal
relationship with Complainant’s former supervisor at the Cheyenne River Agency; (3) SO1 was
contacted by C1 or an Agency attorney about Complainant’s EEO complaint against IHS to
discuss Complainant’s settlement request to be assigned to a position at the Indian Health
Service Hospital in Eagle Butte; and (4) CEO and SO1 probably discussed Complainant’s EEO
activity during their executive team meetings.

The AJ noted that SO1 attested he had no knowledge of Complainant’s EEO activity prior to
being contacted by the EEO Investigator in the current complaint. SO1 also attested he had no
idea Complainant’s resignation from the BIA in 2008 was because of harassment by her former
supervisor. The AJ concluded that even assuming what Complainant alleges is true, this does
not demonstrate that SO1 had prior knowledge of Complainant’s protected activity before
making the selection decision for two reasons.

First, even if SO1 knew of Complainant’s resignation from BIA, this does not mean he knew
about any prior protected activity. Complainant claims she opposed discrimination when she
resigned from her position as a Legal Administrative Specialist at the BIA because S1 was
harassing her, and she indicated as much in her resignation letter. Complainant also attested she
filed several union grievances. The AJ noted in her decision that while it was true Complainant
used the word “harassment” in her resignation letter, neither the resignation letter nor the
grievances indicated that Complainant felt she was being harassed because of a protected EEO
category. Furthermore, the AJ concluded that even if the word harassment as used in the
resignation letter was broadly interpreted to mean harassment based on a protected category,
there was no evidence that SO1 saw the resignation letter. Knowledge by SO1 that Complainant
resigned, or knowledge that Complainant resigned because of a difficult relationship with S1,
does not equate to knowledge of prior protected EEO activity.

Second, the AJ concluded that Complainant’s EEO activity occurred after the selection was
made in this case so it could not have influenced SO1’s selection decision. Complainant first
filed an EEO against the Agency in 2011. The selection decision for the Secretary position was
made in 2008. Accordingly, the AJ concluded that based on the undisputed record, Complainant
failed to demonstrate the knowledge element of a prima facie case for retaliation.

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Claim 2 - Billing Technician

Complainant applied for the Billing Technician Position in approximately August of 2008. The
selecting official for this position (SO2) was a Health Systems Specialist at the Cheyenne River
Health Center, and she did not know Complainant at the time of the selection.

The AJ concluded that Complainant failed to present a prima facie case of reprisal with respect
to this claim, noting that since the selection decision for the position of Billing Technician was
made in 2008, Complainant’s EEO activity could not have influenced SO2’s selection decision.
Furthermore, the AJ noted that a general statement by Complainant that SO2 probably knew
about Complainant’s opposition to discrimination due to general gossip did not meet
Complainant’s burden to demonstrate the knowledge element of a prima facie case of retaliation.

Claim 3 - Inventory Management Specialist

Complainant applied for the Inventory Management position in July 2011. SO1 was the
selecting official for this position. The undisputed record indicates that this position was
ultimately canceled without a selection.

The AJ concluded that even assuming Complainant could make a prima face case, summary
judgment was still appropriate because Complainant did not demonstrate pretext. SO1 affirmed
that he did not select anyone and he recommended that the position be re-advertised because the
applicant pool consisted of only two or three candidates and none of them, including
Complainant, had any inventory experience. The undisputed record shows that none of
Complainant’s former jobs involved managing supplies, quality assurance or general knowledge
of inventory management as was required for this position. The AJ found that Complainant
failed to present evidence that the legitimate business reason given by the Agency for its decision
was pretext for retaliation. Accordingly, the AJ concluded that summary judgment was
appropriate with respect to this claim.

Claim 4 - Inventory Management Specialist

Complainant applied for the Inventory Management Specialist Position in approximately May
2012. SO1 was the selecting official for this position. The undisputed record indicates that after
the selectee for this position (SE1) turned the job offer down, SO1 recommended that the posting
be cancelled because none of the other applicants, including Complainant, had any inventory
experience.

Complainant claims that evidence of discriminatory animus is shown by a comment made by
CEO1. The record indicates that C1 contacted CEO1 to inquire as to whether CEO1 would
consider reassigning Complainant to the Inventory Management Specialist position. There is no
dispute that CEO1 told C1 she did not want to approve the reassignment because she preferred
that the process stay competitive. However, CEO1 agreed to consult with SO1. SO1 consulted
with a Financial Management Analyst, Property & Supply (C2), about the reassignment. SO1
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stated he wanted to keep the process competitive and noted that Complainant did not have any
inventory experience. The record indicates that while CEO1 was discussing the reassignment of
Complainant, C2 referenced Complainant's “history” at the BIA. Subsequently, when CEO1
spoke with C1 and informed him that the reassignment request was denied because they wanted
to keep the process competitive, CEO1 also made a comment to the effect of Complainant had a
“history with the BIA” or perhaps had a “negative history with the BIA.” Complainant argues
that CEO1’s comment is evidence of CEO1’s retaliatory animus toward Complainant.
Complainant also contends that CEO1’s statement about Complainant's “history” was referring
to Complainant’s complaints of harassment while she worked at the BIA, including complaints
about harassment filed in grievances.

The AJ noted that Complainant’s argument assumes that CEO1 and/or C2 knew Complainant
engaged in prior protected activity while working at BIA. However, Complainant has not
presented evidence to support this conclusion. Knowledge by C2 and/or CEO1 that Complainant
resigned, or knowledge that Complainant resigned because of a difficult relationship with her
supervisor, does not equate to knowledge of prior protected activity. Moreover, C2 contradicts
Complainant’s bare, unsupported assertion that the “history” at BIA referred to the alleged
harassment complaint by affirming that it instead referenced that BIA had conducted background
checks on employees which revealed that Complainant had a record of driving while under the
influence of alcohol (DUI). C2 claimed that BIA was going to let go of all employees with a
DUI on their record, and she understood that to be what happened with Complainant.

In addition, the AJ noted that based on the undisputed record, SE1 was the most qualified
applicant for the position. Furthermore, the AJ found that since Complainant did not have any
inventory control experience, she did not demonstrate that SO1’s reasons for canceling the
vacancy announcement (there were no qualified applicants) and for not agreeing to reassign
Complainant to the position were a pretext for retaliatory animus. Accordingly, the AJ
concluded that summary judgment was appropriate with respect to this claim.

Claim 5 - Financial Management Analyst

Complainant applied for the Financial Management Analyst Position on July 26, 2011. SO1 was
the selecting official for this position. The undisputed record indicates that SO1 selected C2 for
this position. SO1 affirmed that he selected C2 for this position because he had been her
supervisor for about five or six years and in his opinion C2 was the best employee he had at the
time, and she was a hard worker who went above and beyond in every aspect of her job. SO1
also noted that: (1) C2 had experience in IHS financial software, United Financial Management
System (UFMS), as well as in iProcurement and PRISM, which were feeder systems into UFMS;
and (2) C2’s former duties as an Inventory Management Specialist involved reviewing various
documents and creating the documents used by the Purchasing Agents. SO1 also recalled that
Complainant had a degree, but he did not have any knowledge of how she worked, and he did
not see anywhere on her application that Complainant had experience in UFMS or PRISM.

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Complainant asserts that she was better qualified for the position than C2 because she had
attained a higher level of education and had more related work experience. Complainant also
asserts that while C2 came from an Inventory Management Specialist position and may have
already had access to UFMS, Complainant had experience in training in UFMS and had
accounting skills and experience. Complainant’s resume indicated that she had obtained
experience in financial matters at a variety of different jobs. Complainant’s financial experience
while working for the Agency as an EEO Specialist included preparing requisitions using UFMS,
ensuring documents were paid using UFMS, procuring supplies and equipment for the program
and entering all the data into the tracking system, and assisting the Director with the program
budget. Complainant also earned financial related experience at jobs outside the Agency in
account analysis, budget, preparation of financial documents and supply procurement. In
addition, Complainant had a Bachelor’s Degree in Business Management and a Master’s Degree
in Business Administration, which included some finance related classes.

The undisputed record indicates that C2 also had obtained experience in financial matters. C2
had worked for the Agency for approximately seven years as a General Supply Specialist. C2
was responsible for supply management for the Cheyenne River Service Unit, which included
maintaining the local inventory management program (M-System), directing the analysis, cost
comparison, and acquisition of supplies, monitoring contract expenditures including de-
obligating remaining funds utilizing UFMS, reconciliation of UFMS and PRISM, initiating
requisitions in UFMS, for various programs, and inventory tasks. C2 was also the authorized
credit card holder for Service Unit purchases and the Contracting Officer for the Eagle Butte and
Fort Yates Service Units. Prior to working for the Agency, C2 had been a Business Manager for
three years which included the development of the annual budget, reporting of monthly
expenditures and processing of all supply orders. In addition, C2 had a certification in
accounting.

The AJ concluded that based upon the financial related experience of both Complainant and C2,
it cannot be concluded that Complainant’s qualifications were clearly superior to C2’s
qualifications. The AJ found that each of them had different strengths and weaknesses, but they
were both qualified for the job, and with respect to length of experience specifically related to
financial matters while working for the Agency, C2 was the superior candidate. Furthermore,
the AJ noted that SO1 testified that one of the reasons he selected C2 was because he had
supervised her for approximately five years and he knew she had a superior work ethic. SO1 had
never worked with Complainant before, and therefore had no knowledge about her work ethic.
The AJ noted that when presented with two qualified applicants, it is not discrimination for the
selecting official to choose the applicant about which he has personal knowledge regarding work
ethic and performance. As such, the AJ found that Complainant failed to present sufficient
evidence to demonstrate by a preponderance of the evidence that the Agency’s stated reasons for
not selecting Complainant were pretext for retaliation. Accordingly, the AJ concluded that
summary judgment was appropriate with respect to this claim.

Claim 6 - Human Resources Specialist

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Complainant applied for the Human Resources Specialist Position on October 20, 2011. The
undisputed record indicates that Complainant’s application did not list any job experience in the
Human Resources field. SO1 asserts that Complainant was not qualified for the position because
she had no specialized experience in the Human Resources field, and could not qualify for the
position based on education alone because Complainant's Master’s Degree was not in Human
Resources.

The AJ concluded that even assuming Complainant would have qualified for the position, the
selectee (SE2) was more qualified. SE2’s application indicated that she had worked for the
Agency as a Human Resources Specialist for about three years prior to applying for the position.
SE2 not only had the necessary specialized experience to qualify for the position in the first
instance, but she also was more qualified overall for the position than the Complainant.
Accordingly, the AJ concluded that Complainant failed to present sufficient evidence of pretext
to warrant a hearing.

Claim 7 – Secretary

Complainant applied for the Secretary position on approximately February 2, 2012. The
undisputed record indicates that there was no selection for this position and it was cancelled.
The selecting official (SO3) did not have a professional relationship with Complainant, and did
not know her personally.

The AJ concluded that Complainant failed to present sufficient evidence of pretext. The record
shows that SO3 affirmed that he decided to cancel the position and not hire anyone because he
discovered the office space he had identified for use by a Secretary was no longer available.
SO3 states that he was in the process of getting ready to conduct interviews when he found out
that the Tribe intended to use the office space for staff that provided direct patient care, and, as a
result, the space was no longer available for Agency staff. SO3 did not hire anyone for the
position. Complainant failed to presented evidence of pretext. Accordingly, the AJ concluded
that summary judgment was appropriate with respect to this claim.

Claim 8 - Health Systems Specialist

Complainant applied for the Health Systems Specialist Position on December 28, 2012. The
vacancy announcement for the position of Health Systems Specialist indicated the purpose of the
position was “to provide for the coordination, management, implementation, planning, and
training for the Quality Assurance/Performance Improvement (QAPI) program of the Cheyenne
River Health Center.”

The selecting official for this position (SO4) selected the selectee (SE3) because she was the top-
rated candidate based on the ratings assessed by the Aberdeen Human Resources Office.
Complainant argues that there is evidence of pretext because she was told by a representative in
the Aberdeen Human Resources Office (HR1) that Complainant was rated at 95, which she
believed made her more qualified for the position than SE3. However, the AJ noted that the
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undisputed documentary record indicated that for the GS-12 position Complainant received a
rating of 94, and SE3 received a rating of 97. Furthermore, for the GS-11 position, the AJ noted
that undisputed documentary evidence indicated that Complainant received a rating of 16, and
SE3 received a rating of 18. In addition to failing to present evidence that she was rated higher
than SE3, the AJ noted that Complainant did not possess any specific qualifications in the QAPI
program. Since the record is devoid of evidence of pretext, the AJ concluded that summary
judgment was appropriate with respect to this claim.

Claim 9 - Health Systems Specialist

The record indicates that SE3 ultimately declined the job offer for the first posting of the Health
Systems Specialist position, and it was re-advertised. Complainant was not required to re-apply
for the position because she was already on the qualified panel due to her previous application
for the original position (Claim 8). SO4 selected the selectee (SE4) because she performed
quality assurance performance improvement for a year for the Service Unit while she was the
Director of Nursing. SO4 also affirmed that because she had worked with SE4 in the past, SO4
knew SE4 was qualified for the position. SO4 also noted that Complainant’s resume did not
indicate any experience or knowledge in quality assurance or performance improvement.

The AJ noted that Complainant’s application did not demonstrate any specific experience in
quality assurance/performance improvement, while SE4’s application does demonstrate such
experience. Specifically, SE4’s application indicates she had worked for the Agency for about
seven years as the Director of Nursing, and prior to holding that position had worked for the
Agency as the Emergency Department Nurse Supervisor for approximately two years. While in
both positions, SE4 was responsible for establishing standards of performance in the nursing
department to meet and maintain nursing standards. Furthermore, while SE4 was Director of
Nursing, she served as the Acting Performance Improvement Coordinator. Based upon the
undisputed record, the AJ found that it could not be concluded that Complainant’s qualifications
were clearly superior to SE4’s qualifications. Accordingly, the AJ concluded that Complainant
failed to demonstrate pretext, making summary judgment appropriate with respect to this claim.

Claim 10 - Purchasing Agent Vacancy

The selecting official (SO5) affirmed that he selected the selectee (SE5) over Complainant
because he found SE5 to be more qualified for the position. Specifically, SO5 noted that SE5
worked for another federal agency at the time of her application during which she gained
experience with purchasing and accounts payable and became familiar with the overall federal
system. SO5 also asserted that SE5 had relevant experience in the private sector dealing with
different vendors and different accounting systems as they related to her family’s restaurant
business.

Complainant argues that she was more qualified for the position than SE5 because SE5 did not
have any federal government employment background so she did not have any experience in
working with the Agency’s financial computer systems. Complainant noted that she had
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experience with UFMS, which was used for purchasing. Complainant’s application did not list
any job experience where her primary duty was purchasing.

Although it is true that Complainant had some experience with the specific accounting systems
used by the Agency and SE5 did not, this does not mean Complainant was automatically more
qualified for the position of Purchasing Agent. The job announcement for the position of
Purchasing Agent stated the purpose of the position was to “[D]irect the procurement of supplies,
equipment, and services, and inventory of equipment and warehouse supplies for the departments
at the Service Unit.” The undisputed documentary evidence indicates that SE5 had more overall
experience in purchasing compared to Complainant. SE5 may have required training in the use
of the specific accounting system used by the Agency, but her work experience in purchasing
was more extensive than Complainant’s. Based upon the record, the AJ concluded that
Complainant had not presented sufficient evidence to show that her qualifications were clearly
superior to SE5’s qualifications and therefore, Complainant failed to demonstrate pretext.
Accordingly, the AJ found that summary judgment was appropriate with respect to this claim.

Claim 11 - Health Systems Specialist

The record shows SO5 selected the selectee (SE6) for the position of Health Systems Specialist,
because she had extensive experience working in Contract Health Services (CHS), and she had
extensive experience performing the specific duties of the position at issue. SO5 asserts that SE6
had much more specialized experience than Complainant, who had some experience with the
Agency’s systems, but nothing that stood out as relating to CHS. The record shows that
Complainant’s experience was related more to her position as an EEO Specialist, such as
experience in EEO conflict resolution but not conflict situations as it related to the duties of
CHS.

The job announcement for the position of Health Systems Specialist stated the position served as
coordinator of the CHS program and was responsible for planning, developing, implementing,
evaluating and coordinating program activities related to CHS. This required the ability to
formulate and implement a Service Unit Contract Health Service Policy and knowledge of the
CHS accounting and budgetary system, including knowledge of Federal and State requirements
for eligibility and billing regulations for Medicare/Medicaid.

As it relates to the position of Health Systems Specialist, Complainant’s application did not
indicate she had any experience specific to formulating and implementing a Service Unit
Contract Health Service Policy or any knowledge of the CHS accounting and budgetary system
and/or knowledge of Federal and State requirements for eligibility and billing regulations for
Medicare/Medicaid. Conversely, SE6’s application indicates that she not only had experience
with CHS when she worked as a Patient Contact Representative, but also that she had actually
worked as a Health Systems Specialist for six months when she was temporarily promoted to the
position.

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Complainant argues evidence of pretext can be seen by the fact that she believes SE6 was pre-
selected because she was selected and processed very quickly. Even if true, standing alone this
does not demonstrate pretext. The AJ concluded that the undisputed record shows that SE6 was
more qualified than Complainant and that the record is devoid of evidence of pretext or
retaliatory animus. Accordingly, the AJ found summary judgment to be appropriate with respect
to this claim.

Claim 12 - Inventory Management Specialist

SO1 selected the selectee (SE7) over Complainant because she was the better qualified
candidate. Specifically, the undisputed record shows that SE7 previously served as a Supply
Clerk for IHS, and as a result had experience with the inventory computer systems, receiving and
the annual inventory. Furthermore, SE7 had extensive experience with the M-System, including
training other employees on the use of the system, and was Sunflower System3 certified.
Comparatively, Complainant did not have any M-System experience at all. It is true
Complainant also had some experience with the inventory computer systems such as UFMS and
Sunflower, but it was not as extensive as SE7’s experience. Given this record, the AJ found that
Complainant failed to present sufficient evidence that her qualifications were clearly superior to
SE7’s qualifications or that there was evidence of pretext. Accordingly, the AJ concluded that
summary judgment was appropriate with respect to this claim.

Upon review of the record, we agree that Complainant failed to present sufficient evidence that
she engaged in protected EEO activity prior to 2011 when she filed an EEO complaint against
the Agency. In addition, we agree that even if the responsible management officials were aware
of Complainant’s prior resignation from the BIA and grievances related to such resignation, there
is insufficient evidence in the record that the responsible management officials believed that
Complainant engaged in protected EEO activity at the time. Lastly, as set forth in the AJ’s
decision, the record is devoid of evidence that Complainant’s qualifications for any position at
issue, were superior to each selectee or that the Agency’s legitimate, non-retaliatory explanations
were a pretext or that the Agency’s actions were otherwise motivated by retaliatory animus.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s
summary judgment decision in favor of the Agency.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

3 Knowledge of the Sunflower System (a part of the M-System software) was a requirement of
the position.
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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.
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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 17, 2017
Date