[Redacted], Billi D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2021004238 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billi D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021004238 Agency No. DLAR-21-0022 DECISION On July 21, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 23, 2021 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. 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 Integrated Supplier Team Leader (IST Lead), GS-1101-13, at the Agency’s Aviation/FAZ Division, Procurement Branch in Richmond, Virginia. The Division Chief was Complainant’s first-level supervisor (S1). On December 3, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American) and age (55) when on October 9, 2020, the Division Chief informed her that she was not selected for the position of Deputy Division Chief, GS-1101-13, announced via email on September 29, 2020, located in Aviation, in Richmond, Virginia. 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. 2021004238 2 A lateral reassignment opportunity was announced to the workforce via email for two GS-13 Deputy Division Chief vacancies, one in the FAZ Division and the other in FAW Division. Complainant submitted her resume and statement of interest for the FAZ Deputy Division vacancy on September 30, 2020. There were 11 applicants for the position of Deputy Division Chief. S1 interviewed three applicants, including Complainant and the applicant that would be selected for the position (Selectee). Complainant was qualified for the position because it was considered a lateral move for a GS-13 IST Lead. On October 9, 2020, Complainant learned she was not selected for the position when she received S1’s email to the FAZ Division that Selectee was going to be the new FAZ Deputy Division Chief. S1’s second-level supervisor, who was also Complainant’s fourth-level supervisor, was the Director, Supplier, Operations, Commodities (S4). S4 had asked both Division Chiefs to develop their own criteria for the positions based on the division’s business needs, and were responsible for evaluating and selecting their Deputy Division Chiefs using their own criteria. S1 evaluated the applicants using five criteria: (1) Demonstrated ability to move work/ accomplishments, (2) Diversity of experience, (3) Teaming, (4) Briefing, and (5) Ability to develop supervisors. Among other things, S1 stated Selectee described her ability to move work and her specific accomplishments as an IST Lead such as the specific steps she implemented to achieve success decreasing purchase requests (PR) on hand and aged PRs on her team. S1 also stated he was looking for someone that had different experiences from him to help him guide the division through significant changes in the future. Selectee showed she had a diversity of experience citing specific examples, from working as an analyst in Cost and Pricing to running an Original Equipment Manufacturers (OEM) team at a high-level. Selectee’s experience showcased her ability to team with other divisions or agencies to resolve complex problems, and as the IST Lead of an OEM, she was also required to do monthly high-level briefings to Aviation Command. S1 noted Complainant did well during her interview. However, S1 found Complainant did not provide many detailed examples of her accomplishments to demonstrate her qualifications for each criterion. He felt that Complainant’s experience was not as diverse as Selectee’s because the entirety of her experience was spent pre-award. He noted Complainant also worked on OEM teams, but as a team lead and first-line supervisor, which have less responsibility than an IST Lead. Additionally, S1 felt Complainant’s background was too similar to his own experience. S1 found that Complainant did not provide detailed or significant examples of teaming or her ability to brief important high-level manners. Complainant alleged Aviation Leadership was filling higher level positions with white and/or younger employees. Complainant believed she was not selected because the Agency wants white and/or younger employees to get experience as a GS-13 Deputy Division Chiefs so they can later fill GS-14 Division Chief vacancies. 2021004238 3 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 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). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 1614, 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination, the Commission finds, as described above, the Agency articulated legitimate, non-discriminatory reasons for its actions. S1 evaluated the resumes of Complainant and Selectee, as well as interview answers with the same five categories previously listed. S1 explained that Complainant mentioned her accomplishments during the interview but did not provide detailed examples illustrating her actions and experiences. Additionally, S1 noted that he was looking for the applicant with experience and ideas different from his own to aide him guiding the division with upcoming changes. S1 noted that Complainant’s experience was too similar to his background and S1 articulated where Selectee’s work history was different and how it could be useful. 2021004238 4 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Aside from Complainant’s conclusory allegations that she was not selected because of her age and race, Complainant failed to establish that the stated reasons for her nonselection were pretext for discrimination. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Complainant has presented no evidence demonstrating that her qualifications were plainly superior to those of the Selectee. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected bases were a factor in any of the Agency's actions. Aside from Complainant’s conclusory allegations and speculations, Complainant has failed to establish that the Agency’s reasons were pretext for discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety and contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021004238 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004238 6 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 27, 2022 Date