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

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2022001674 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elease S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022001674 Agency No. DLAP-21-0128 DECISION On February 7, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 19, 2022 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. BACKGROUND During the period at issue, Complainant worked as a Business Analyst, GS-0501-12, with the Defense Logistics Agency (DLA), Troop Support - J8 Finance at the Agency’s DLA in Philadelphia, Pennsylvania. On July 2, 2021, Complainant filed a formal complaint alleging that the Agency discriminated against her based on sex (female) when she was not selected for the position of Supervisory Financial Systems Analyst, GS-0501-13, Job Opportunity Announcement (JOA). After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on January 19. 2022, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established as alleged. 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. 2022001674 2 The instant appeal followed. ANALYSIS AND FINDINGS 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, 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See 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. See 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, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). On appeal, Complainant argues that she has established a prima facie case of sex discrimination, and that the Agency did not articulate a legitimate non-discriminatory reason for her non- selection. However, we determine responsible Agency management did articulate legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. The Supervisory Financial Systems Analyst (“Selecting Official”) was the selecting official for the Supervisory Financial Systems Analyst. The Selecting Official explained that the selection panel, consisting of two females and one male, was instructed to recommend a selectee and two alternates. The interview panel was responsible for reviewing each candidate’s application materials and recommend the best qualified for the position. Following the interviews, the panel chose the selectee (male) and two alternates. The panel members explained during the investigation into the complaint that they determined the selectee was the best qualified candidate for the Supervisory Financial System Analyst position based upon his technical knowledge, superior audit experience and leadership characteristics. Complainant was ranked third by the panel out of the six candidates, making her one of the alternates. 2022001674 3 One of the panelists, the Lead Business Analyst, stated that she ranked Complainant as second of the six, but that after further panel discussion, the panel as a whole decided that Complainant was ranked third out of six. Among other things, Complainant lacked experience working in the J8 Finance section. However, Complainant was not directly familiar with the duties in that section. The Lead Business Analyst stated that although Complainant’s answers were strong and her previous supervisory experience made her a worthy candidate for the subject position, the selectee had better responses to the questions asked during the interview. Complainant argues that the selectee’s resume relating to his two most recent positions experience appears to be copied and pasted from the Element and Standard criteria on his 2020 and 2021 appraisals and from the Business Analyst position description. Complainant stated that her qualifications were plainly superior to the selectee’s qualifications. Complainant provided examples performing the required skills and competencies are given throughout Complainant’s resume and her two performance appraisals (2020 and 2021) that were part of the application package. After carefully considering all the evidence of record, including the arguments made on appeal, we conclude Complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons for the selection decision were a pretext for discrimination. Complainant has not shown that the alleged disparities in qualifications between herself and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc.,126 S. Ct. 1195, 1197-1198 (2006). Moreover, there is no other evidence to suggest that sex played any role in the selection process. As such, we find that Complainant failed to establish, by a preponderance of the evidence, that the reasons proffered for the selection decision were a pretext masking discrimination based on her sex. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish that discrimination occurred. 2022001674 4 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). 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). 2022001674 5 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. 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 7, 2023 Date