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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022001816 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chet L.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022001816 Agency No. DLAR-19-0126 DECISION 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 January 19, 2022 final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Support Specialist, GS-2010-09, at the Agency’s Defense Logistics Agency (DLA) Aviation QAWXCA Division at Robins Air Force Base in Georgia. On July 10, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and age (55) when, on March 28, 2019, he became aware he was not selected for the GS-2010-11 Inventory Management (Sustainment) Specialist position, DLA Aviation Planning and Support Branch (QAWYB), for which he applied under Job Announcement DLAAvn-19-10421169-MP. 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. 2022001816 2 The Customer Support Manager, (White, female, age 41) was the Selecting Official (SO). Complainant identified SO as the person primarily responsible for the alleged discrimination, along with the Lead Human Resources Specialist (Caucasian, white, female, 33) (Lead HRS), who coordinated the vacancy announcement and referral of candidates to SO. The position at issue in this case was advertised under Job Announcement DLAAvn-19- 10421169-MP, from February 8, 2019 to February 19, 2019. Lead HRS reviewed the application packets and referred the eligible candidates to SO. Complainant’s name was referred to the selecting official. SO stated she was responsible for reviewing the resumes, conducting the interviews, and making selections for the Inventory Management Specialist position. She interviewed 15 applicants, including Complainant. SO told each of the candidates that to successfully answer the interview questions, one should provide specific examples from their past work experience to demonstrate their ability in a specific manner. She was looking for answers that described “the Situation, Task, Action and Result,” referenced as the STAR format. All candidates were asked the same questions. SO stated the Agency selected five individuals under the announcement at issue. SO asserted that Complainant was not selected because she determined that Complainant was less successful in providing his answers in the STAR format that she wanted. She also determined that his job entry on his resume was a copy of his position description and cited no specific experience. The record includes a rating sheet that documents that Complainant was scored lower than the five employees, who were selected. Complainant believed that he was the best qualified candidate for the position based on his vast supply experience after 20 years of service with the Air Force in the Inventory Management career field. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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 determined that management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, SO affirmed that the selectees were able to articulate specific examples of work experience to demonstrate their ability in the required qualifications and responsibilities, and their answers were supported by their resume. SO noted that Complainant’s answers were not in the STAR format and his job entry on his resume was a copy of his position description, having no specific experience. Therefore, Complainant’s interview answers were not supported by his resume. The Agency concluded that Complainant failed to show that management’s reasons were pretextual. As a result, the Agency found that Complainant was not subjected to discrimination as alleged. This appeal followed. 2022001816 3 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. For purposes of our analysis, we will assume that Complainant established a prima facie case of discrimination on the alleged bases. We further determine that the Agency articulated legitimate non-discriminatory reasons for its actions. SO explained that Complainant failed to satisfactorily answer the questions in the STAR format that she wanted, and she believed the other candidates performed better during the interview. In addition, Complainant’s resume cited no specific experience and instead appeared to be copied directly from his position description. 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). One way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his nonselection claim. As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. 2022001816 4 The Commission finds no persuasive evidence that Complainant's protected classes were a factor in the Agency's actions. The Commission finds that Complainant failed to show that his qualifications for the position at issue were plainly superior to those of the selectees. In this case, the selectees had attributes that justified their selections, and the selection official affirmed that she believed the selectees were better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 259. We note that Complainant contended that he was better qualified for the position based on his vast years of experience. The Commission has found, however, that number of years of experience alone does not establish an applicant's qualifications as observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). 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. In this case, Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the final agency decision. 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. 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). 2022001816 5 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. 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. 2022001816 6 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 March 2, 2023 Date