Matilda C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181944 (E.E.O.C. Sep. 24, 2019)

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

Matilda C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120181944

Agency No. DIA-2017-00035

DECISION

On May 24, 2018, 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
April 19, 2018, final decision 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 decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination based on her protected class.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist, GG-0201-10, Step 10, in the Agency’s Office of Human Resources (OHR), Employee
Services Division (ESD), Directorate for Mission Services (MS) Support Branch in Washington,
District of Columbia.

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 May 23, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when:

1. on or about January 23, 2017, instead of being re-hired at her previous grade of
GG-13, Step 2, Complainant was brought on as a GG-10, Step 10 as a result of
her Direct Hire package being changed from a Not-To-Exceed, Non-Competitive
Appointment, which would have allowed her to retain her highest previous grade,
to an entry level appointment due to changes in hiring policy. Additionally, the
action for her hire (SF-50) indicated that she was hired from a vacancy
announcement and did not reflect “Direct Hire”;

2. on or about January 23, 2017, her direct hire package was routed for review with
the incorrect position description; and,

3. on February 22, 2017, the Deputy Director of Human Resources (female) (the
Deputy Director), informed Complainant that she could not justify hiring any
0201, Human Resources Specialist, above the GG-10 level.

The investigative record reflects the following pertinent matters relating to the subject claims.

Complainant was previously employed as a Human Resources (HR) Specialist from May 2007 to
November 2012. At the time of her departure, Complainant was a HR Specialist, GG-0201-13,
Step 2. By email dated July 7, 2016, Complainant expressed an interest to rejoin the Agency, and
a willingness to come back at a lower grade.

Prior to Complainant’s rehiring, the Supervisory HR Specialist (male), GG-0201-15, informed
Complainant of the Agency’s new hiring guidance. He explained that as a former employee, she
could be rehired quickly and noncompetitively, but the policy limited such rehired employees to
GG-07 to GG-10 placements. He informed her that the Agency could rehire her as a GG-10, Step
10 with a GG-11 target grade. Complainant was never considered for a Not-To-Exceed (NTE)
Appointment.

The Deputy Division Chief of HR Operations (female) (Deputy Chief), GG-0201-14, stated that
prior to offering Complainant the position, she made it clear that the rehire process that the
Agency was using only allowed for Complainant’s rehire at the GG-10 level. The Deputy Chief
noted that the only exception was internal approval by the Career Management Council (CMC).
However, the Deputy Chief explained how difficult and lengthy an internal CMC approval
process would be, which would completely defeat the process of a noncompetitive, direct rehire.
The Deputy Chief stated that she never considered, or offered, a NTE Appointment, specifically,
because NTEs are short term, have fewer benefits, and cannot be converted to permanent
positions. The Deputy Chief stated that Complainant understood the process and conditions
around her noncompetitive rehire, and assured her that rejoining was more important.

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On January 23, 2017, Complainant was noncompetitively rehired as a HR Specialist, GG-0201-
10. A fake vacancy announcement number was attached to Complainant’s rehire package. This
was not a processing error, but a matter of paperwork as all hires need to be associated with a
vacancy announcement number. It had no impact on Complainant’s hire. Complainant did not
interview for the position, and she did not apply through a vacancy announcement. Complainant
noted that she is currently doing the same work she previously did, but at a lower pay rate.
Complainant noted that a male coworker (CW) was hired around the same time, but was brought
in as a GG-0201-12 employee. Complainant acknowledged that CW was hired through the
Wounded Warrior Internship Program (WWIP), but felt that they should have both been hired as
GG-0201-12 employees.

The Supervisory HR Specialist explained that while Complainant and CW were hired around the
same time, their situations are not comparable. The Supervisory HR Specialist noted that CW
was a former contractor that was hired through the Agency’s WWIP, which allowed him to be
hired in a GG-0201-12 position. Complainant was a former employee rehired noncompetitively.
CW and Complainant were hired through different Agency hiring processes, and the program
Complainant was hired through simply did not allow for any hires to come in beyond a GG-10
position. The Supervisory HR Specialist stated that sex had nothing to do with the hiring
process, and that the use of different hiring programs accounted for the different grade level.

On February 22, 2017, the Deputy Director met with Complainant to discuss her position level.
The Deputy Director acknowledged Complainant’s disappointment but explained that
Complainant could not have possibly been rehired above the GG-10 level as a noncompetitive
rehire.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not provide any statement or brief in support of her appeal.

The Agency asserts that the final decision is fully supported by the record, and that Complainant
did not provide any persuasive arguments below or on appeal to overturn the final Agency
decision.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
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1614 (EEO MD-110), at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. 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 a complainant to prevail, 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, n. 13; 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 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 on the basis of a prohibited reason. St. Mary's Honor Center 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 its actions, 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 Service Board of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983).

Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on her protected class, the Agency has
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant
sought to rejoin the Agency noncompetitively as a direct rehire. Based on her circumstances,
Complainant was eligible to be rehired. The program Complainant was rehired under allowed for
expedited processing, which allowed Complainant to quickly rejoin the Agency, but under the
limitation that she was only rehired in a GG-07 to GG-10 position. In comparison, CW was hired
through the Agency’s Wounded Warriors Interns Program (WWIP). The WWIP allowed the
Agency to noncompetitively hire up to GG-13 level, therefore accounting for CW’s higher grade
level. Therefore, while Complainant and CW had both previously worked for the Agency in
some capacity, they were both rehired under different Agency hiring processes. There is no
evidence that either CW’s or Complainant’s sex factored into the hiring process.

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Complainant argued that the Agency, at the very least, incorrectly rehired her, and should have
kept her rehire as a Not-To-Exceed (NTE) Temporary Appointment. Complainant argued that a
NTE would have allowed her to retain her former GG-13 grade level. The record demonstrated
that at no point was Complainant offered a NTE appointment position. Every responsible
management official testified that Complainant was never considered for a NTE position. The
Agency acknowledged Complainant’s frustration in her GG-0201-10 status, especially upon
learning of CW’s GG-0201-12 status. However, the record is clear. The hiring processes used are
what created the differences in position grade level, not the sex of the employees.

We note that agencies generally have broad discretion to carry out personnel decisions and
exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6,
1996). Regarding adverse actions, the Agency articulated legitimate, nondiscriminatory reasons
for its actions for which Complainant has failed to show were pretext for discrimination. Pretext
inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v.
Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is
not whether the agency made the best, or even a sound, business decision; it is whether the real
reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext
for intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency
was motivated by prohibited discrimination. Complainant has not established that the Agency
actions were due to her protected class.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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.
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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.

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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 24, 2019
Date