Matilde H.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Office of the Defense Inspector General), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

0120181957 (E.E.O.C. Sep. 12, 2019)

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

Matilde H.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Office of the Defense Inspector General),
Agency.

Appeal No. 0120181957

Agency No. OIG-17-05

DECISION

Complainant timely 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 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 the Agency properly found that Complainant did not establish
that her non-selection was motivated by discrimination based on her protected classes, as
alleged.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Director, GS-15,
Evaluations Planning and Support Division, Office of Evaluations and Inspections, with the
Department of Health and Human Services (HHS), Office of Inspector General, in Washington,
D.C. Report of Investigation (ROI), at 228.

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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Prior to working for HHS, Complainant worked as a Senior Program Analyst, GS-14, at the
Agency’s Office of Inspector General (OIG), in Alexandria, Virginia. ROI, at 228.

From January 18, 2017, through February 1, 2017, the Agency opened for selection the position
of Supervisory Program Analyst, GS-15, at the Agency’s OIG in Alexandria, Virginia. Id. at 38-
44. Complainant applied for the position, was rated qualified, and was referred for consideration
along with seven other candidates (six male candidates and one female candidate). Id. at 365. As
part of the selection process, Complainant and the other candidates were required to complete a
written test. Id. at 268. The scores of the test were reportedly submitted to each person of the
interview panel for their consideration and use in grading each interviewed candidate for the
position. Id. The interview panel was comprised of the Supervisory Program Analyst (male), the
Assistant Deputy Inspector General for Special Plans and Operations (male), and the Assistant
Deputy Inspector General for Administration Investigations (male).

The panel interviewed each of the eight candidates for the position from March 2, 2017, through
March 7, 2017. Id. at 268. Each panel member rated each candidate in five weighted competency
areas on a scale ranging from 1-5, with 1 being the lowest and 5 the highest. Id. at 269. The five
competency categories were weighted as follows: 1) Leadership (0.3); 2) Operational
Capabilities (0.2); 3) Interpersonal Skills (0.2); 4) Experience (0.1); and 5) Technical
Capability/Capacity (0.2). Id. at 362. The panel then added each competency category score to
reach a total aggregate score for each respective candidate.

The selectee (male) received the highest aggregate score, and therefore the highest ranking from
each of the three panel members. For example, the Supervisory Program Analyst scored the
selectee with a score of “5” for Leadership, the highest weighted category. Id. at 362. The
Supervisory Program Analyst also provided the selectee with scores of “5” for Operational
Capabilities and the Interpersonal Skills category and scores of “4” for Past Experience and
Technical Capability/Capacity. Id. The selectee received a total weighted aggregate score of
“4.7” from the Supervisory Program Analyst. Id. The Supervisory Program Analyst scored
Complainant, however, with a “3” for Leadership and scores of “4” for Operational Capabilities
and the Interpersonal Skills category, and scores of “5” for Past Experience and Technical
Capability/Capacity. Id. Complainant received a total weighted aggregate score of 4.0 from the
Supervisory Program Analyst. Id. The Assistant Deputy Inspector General for Administration
Investigations and the Assistant Deputy Inspector General for Special Plans and Operations
similarly scored the selectee higher than Complainant in the competency areas of Leadership and
Interpersonal Skills. Id. Complainant was ranked fifth overall by the panel, while the selectee
was ranked first by the panel. Id. at 352. The only other female candidate for the position was
ranked eighth by the panel.

Although Complainant scored higher than the selectee on the written test, the scoring
documentation used during the interview process does not show how test scores factored into
total aggregate weighted scores for the candidates. The panel unanimously chose the selectee as
its first choice and forwarded his name to the Deputy Inspector General for Special Plans and
Operations (male) who served as the selecting official (SO).
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In recommending the selectee for the position, the Supervisory Program Analyst averred that the
selectee:

[H]ad more leadership experience, had more experience as a team leader on
Inspector General Evaluation/Audit projects, and had demonstrated greater
interpersonal skills. He also handled the interview much better, answering the
interview questions in a direct, succinct manner.

Id. at 357.

In also recommending the selectee for the position, the Assistant Deputy Inspector General for
Special Plans and Operations stated,

[The selectee] and [Complainant] possess similar experiences, training, and skills.
[The selectee’s] responses to the questions asked by the Interview Panel were
more professional and measured than those of [Complainant], who wandered off
topic excessively in her responses to a number of the questions asked. In my view,
[the selectee] exceeded [Complainant] in leadership capability, in interpersonal
skills, and technical ability and professional knowledge.

Id. at 271.

The third member of the panel, the Assistant Deputy Inspector General for
Administration Investigations, only averred that he:

[S]cored [the selectee] higher than [Complainant] in the criteria of Leadership as a
whole, ability to work with others, and past experience.

Id. at 257.

The SO subsequently accepted the recommendation of the panel, and the selectee was chosen for
the position. The SO explained that he chose the selectee because he was unanimously ranked
first by the panel. Id. at 262.

On June 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and reprisal for prior protected EEO activity2 when, on
or about May 10, 2017, she was not selected for the position of Supervisory Program Analyst,
GS-0343-15 (job opportunity announcement number IG-17-1896602-SPO-MP).

2 In claiming that she was subjected to reprisal, Complainant contended that she contacted the
Agency’s EEO office in May 2016 to allege that the Agency was frequently hiring unqualified
male applicants for higher graded leadership positions and that the applicants did not have the
necessary experience to conduct supervisory reviews on projects. ROI, at 13.
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Following 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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency
concluded that Complainant failed to prove that it had subjected her to discrimination as alleged.

The Agency initially found that Complainant did establish a prima facie case of discrimination
based on her sex. In so finding, the Agency noted that Complainant is female, and thus a member
of a protected class. The Agency also noted that Complainant alleged that she was subjected to
an adverse action when she was not selected for the Supervisory Program Analyst position for
which she applied. The Agency nevertheless found that it articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. Namely, the Agency stated that all
panel members believed that the selectee was well qualified and performed better in the
interview session. The Agency noted that management officials denied that there was an ongoing
bias against the selection of female candidates in the organization and that female personnel have
filled three of the four available GS-14 positions. The Agency found that its reasons were clear
and specific enough to afford Complainant a full and fair opportunity to demonstrate pretext. The
Agency however determined that Complainant failed to meet her burden to establish that its
reasons were a pretext for discrimination based on her sex.

In addressing Complainant’s claim of retaliation, the Agency noted that only one official
involved in the selection process had knowledge of Complainant’s prior protected EEO activity.
The Agency also noted that Complainant’s EEO activity occurred one year prior to her
application for the Supervisory Program Analyst position and, given that length of time,
Complainant did not establish a temporal nexus between the non-selection and her protected
activity. The Agency therefore found that Complainant did not establish a prima facie case of
discrimination based on reprisal.

CONTENTIONS ON APPEAL

Complainant’s Brief on Appeal

On appeal, Complainant contends that the Agency did not follow it policy and procedures during
the selection process, and therefore rater bias improperly influenced the panel’s decision in
choosing the selectee for the instant position. Complainant maintains that the Agency violated its
policy in the selection process when management did not make an effort to compose an
interview panel representative of minority groups and both genders. Complainant moreover
asserts that management failed to include a Human Capital Advisory Service (HCAS)
representative as part of the interview panel, which violated Agency selection policy and
procedure. She further maintains that the panel failed to acknowledge her management and team
leadership experience on overseas contingency operations, among other things. Complainant
states that these factors were listed in the assessment questionnaire criteria, and presumably the
job analysis criteria as well.
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Complainant additionally states that the selectee could not have been among the best qualified if
the HCAS properly rated the resumes of the candidates, and he therefore should have been
disqualified, as he did not have the expertise required of the position. She maintains that the fact
that she met all the Knowledge, Skills, and Abilities (KSAs) and scored highest on the written
portion of the interview process, the only part of the process not run by the panel, further
supports her claim that the Agency was biased against her.

Complainant additionally contends that the Agency erred in finding that she did not establish a
prima facie case of discrimination based on reprisal. Complainant argues that the selection
process was the Agency’s first opportunity to subject her to reprisal, as she had left the Agency
one year before. Complainant states that she left the Agency because she was fearful she would
be subjected to retaliation if she complained about the hiring of unqualified male candidates to
higher-graded positions.

Agency’s Response

In response, the Agency asserts that Complainant improperly raises new allegations for the first
time on appeal, including that her claim should be addressed under disparate impact theory,
among other things. The Agency nevertheless notes that Complainant does not provide any
statistical data or other evidence demonstrating that the criteria the Agency used in the selection
process was discriminatory.3 The Agency further believes that Complainant failed to show that
her qualifications were plainly superior to those of the selectee, and its facially neutral resume
review criteria and interview questions do not support Complainant’s claim that she was
subjected to discrimination, as alleged. The Agency moreover maintains that Complainant failed
to establish that she was subjected to discrimination based on reprisal, as alleged.

STANDARD OF REVIEW

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).

3 To the extent Complainant is alleging that she was subjected to disparate impact, we note that
such a claim was not accepted for processing by the Agency. The Agency expressly defined the
accepted sex-discrimination claim as one involving an allegation of disparate treatment. ROI, at
129-130. In addition, we note that Complainant failed to notify the Agency that she believed the
accepted claim was incorrectly identified. We therefore find that any disparate impact claim is
not part of Complainant's instant complaint and decline to address it on appeal. See Tuttle v.
Dep't of the Army, EEOC Appeal No. 0120091975 (Sept. 17, 2009); Mitchell v. U.S. Postal
Serv., EEOC Appeal No. 0120071375 (May 14, 2009) (declining to address on appeal
complainant's disparate impact claim because the agency did not accept it for processing and
complainant did not challenge the definition of the accepted claims).

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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 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”).

ANALYSIS AND FINDINGS

Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, assuming arguendo that Complainant has established a prima facie
case of discrimination based on sex and reprisal, we find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, the Supervisory Program
Analyst, as noted above, averred that the selectee had more experience as a Team Leader on
Inspector General Evaluation/Audit projects and had demonstrated greater interpersonal skills.
The Supervisory Program Analyst also explained that the selectee handled the interview much
better, answering the interview questions in a direct, succinct manner. Another panel member,
the Assistant Deputy Inspector General for Special Plans and Operations, explained that while
the selectee and Complainant possessed similar skills, the selectee’s responses to the questions
asked by the Interview Panel were more professional and measured than those of Complainant,
who wandered off topic excessively in her responses to a number of the questions asked.
These explanations meet the Agency's very light burden of production under Burdine. The
burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were
pretext for discrimination. Burdine, at 256. In an attempt to show pretext, Complainant maintains
that the Agency did not follow its policy and procedures during the selection process, and
therefore rater bias improperly influenced the panel’s decision in choosing the selectee for the
instant position. Complainant also maintains that the Agency violated its policy in the selection
process when management did not make an effort to compose an interview panel representative
of minority groups and both genders. She further maintains that the panel failed to acknowledge
her management and team leadership experience on overseas contingency operations, among
other things.
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She also maintains the fact that she met all the Knowledge, Skills, and Abilities and scored
highest on the written portion of the interview process, the only part of the process not run by the
panel, further supports her claim that the Agency was biased against her.
Notwithstanding Complainant’s contentions, we find that she has not established that the
Agency’s reasons herein were pretextual based on either her sex or prior protected EEO activity.
We note that, in a non-selection case, a complainant may demonstrate pretext by showing that
the complainant's qualifications are “plainly superior” to those of the selectee. See Ash v. Tyson
Foods, Inc., 546 U.S. 454 (2006); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser
v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). A review of Complainant’s and
the selectee’s resumes reflects that they both possessed similar experience and qualifications for
the position at issue. Specifically, the selectee’s resume reflects that he held the position of
Senior Program Analyst and Team Leader, GS-14, with the Agency’s Special Plans and
Operations Directorate within the OIG for over three years prior to his selection. ROI at 193-97.
The selectee additionally worked for the Agency’s OIG as a Senior Auditor and Team Leader
with the Agency for another three years, and moreover held a non-supervisory Auditor position
with the Agency’s OIG for over five years before that. Id.

Complainant’s resume reflects that she, like the selectee, held the position of Senior Program
Analyst and Team Leader, GS-14, within the OIG for about four years before taking the position
with HHS at the GS-15 grade-level for about a year. Id. at 46-55. While Complainant’s resume
was no doubt impressive, the record shows that the selectee had many years of experience
directly working for the Agency as a Team Leader, among other things. Based on the record, we
find that Complainant has not shown that her qualifications were plainly superior to those of the
selectee.
Moreover, we find that while the selection process may not have been ideal, Complainant has not
shown by a preponderance of the evidence that the Agency's actions were motivated by
discriminatory or retaliatory animus. The ultimate burden of persuasion remains Complainant's.
Reeves, supra, 530 U.S. at 143. As Complainant did not request a hearing, we do not have the
benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can
only evaluate the facts based on the weight of the evidence presented to us.
To the extent that Complainant maintained that preselection played a role here, we note that even
if preselection occurred, it would not be unlawful unless Complainant can show that the
preselection was driven by discriminatory animus. See Nickens v. Nat'l Aeronautics and Space
Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected individual and not some
prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant did not establish that she was subjected
to discrimination, as alleged. Therefore, we AFFIRM the Agency’s final decision.
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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.
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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

September 12, 2019
Date