[Redacted], Starr D., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2021003846 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Starr D.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003846 Agency No. 20-00146-02249 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 June 11, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as an Aircraft Attendant, WG-8862-07, at the Agency’s Marine Corps Air Station in Cherry Point, North Carolina. On November 13, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1. On July 10, 2020, her second-line supervisor (S2) did not select her for the position of Lead Aircraft Attendant; and 2. On November 11, 2020, her immediate supervisor (S1) did not offer her overtime. 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. 2021003846 2 Nonselection S2 posted the vacancy announcement for the Lead Aircraft Attendant position on USAJOBS. The vacancy was open from April 8 through April 13, 2020. Three candidates - Complainant, the eventual Selectee, and a third Aircraft Attendant in the shop (C1) submitted their application packages through the USAJOBS portal. However, when S2 received the certificate, the Selectee’s name was missing. S2 then posted the vacancy announcement on USAJOBS for a second time from April 17 through April 22, 2020. Although the same three candidates reapplied for the position, this time C1’s name was missing from the certificate. After these two unsuccessful attempts to fill the position through USAJOBS, S2 decided to do so through a procedure called management identification of candidates (MIOC). Following S2’s orders, S1 send out an email to all hands dated June 12, 2020, in which he explained that the Lead position was going to be filled through an MIOC and urged those who were interested to email their resumes to S2. Four employees - the three who applied through USAJOBS and a second Aircraft Attendant on the same team (C2) - sent their resumes to S2. There was no certificate issued, but S2, in consultation with the Airfield Operations Officer (S3) decided that, out of fairness to the applicants, they would interview everyone who applied via the MIOC. The candidates were interviewed by an advisory panel that included S1, S2, S3, and a Gunnery Sergeant (GS). Each candidate was asked a series of 12 questions. Point values were assigned to the candidates’ answers and the scores for each candidate were tallied up as follows: Panelist C1 C2 Complainant Selectee GS 32 29 42 35 S3 34 34 46 45 S1 43 28 51 46 S2 37 36 45 42 TOTALS 146 127 184 168 Based upon these scores, the panel eliminated C1 and C2 from further consideration. A second panel was convened which did not include S1 because he would be the supervisor for the Lead position. According to S2, S3, and GS, the Selectee performed better than Complainant during the second interview and was ultimately chosen. Overtime Denial Complainant claimed that despite being one of the most senior and knowledgeable Aircraft Attendants, she was not offered the opportunity to work overtime on November 11, 2020. When asked what reason S1 gave for not offering her an overtime opportunity, she replied that S1 told her that he did not have to offer her overtime. S1 averred that Complainant was off shift when this opportunity to work overtime came up, and that in accordance with the collective bargaining agreement he did not have to call employees in that are off shift to work overtime. A Civilian Human Resources Officer (CHRO) confirmed that since Complainant was on leave the day before the overtime opportunity arose, he could use the people who were on shift the day before without 2021003846 3 having to call anyone who was on leave. The CHRO further stated that managers were encouraged not to call employees in for overtime who were on approved leave unless the mission requirements demanded it. She pointed out that during the latter part of the year, employees tended to schedule use-or-lose leave. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant requested a final decision from the Agency. 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 she was subjected to discrimination or reprisal 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 on her disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry in both claims may be dispensed with, however, since S1, S2, and S3 all articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to her non-promotion claim, all three officials stated that although Complainant and the Selectee were the two top candidates for the Lead Aircraft Attendant position, the Selectee performed better than Complainant during the second interview. For example, the Selectee demonstrated much better conflict resolution skills in his responses and was able to describe what leadership techniques he would employ to get the mission accomplished. Further, S3 stated that the Selectee answered the questions more concisely and confidently. S2 added that Complainant performed well, but the Selectee simply performed better during the second round of questions which were harder and more thought-provoking. As a result, the panel unanimously selected the Selectee. Regarding the overtime claim, S1 and the CHRO affirmed that since Complainant had been on leave the day before, S1 was not required to offer her the opportunity to work overtime on that day. 2021003846 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by S1, S2, and S3 are pretexts 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); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Larraine D. v. Dep’t of Defense, EEOC Appeal No. 2022002980 (Oct. 27, 2022). Regarding Complainant’s non-selection for the Lead Aircraft Attendant, the record demonstrates that the USAJOBS part of the process was plagued with errors. Agency management twice attempted to advertise the position through USAJOBS, but due to technical difficulties, one candidate was left off the certificate generated by USAJOBS in both attempts. In order to ensure that everyone who was interested in the job received an interview, S2, with the consent of S3 and advice of Human Resources, abandoned USAJOBS altogether and instead went with the MIOC process. The MIOC process did not produce a certificate, but all four candidates, including Complainant and the Selectee were granted an interview. After the first round of interviews was completed, the four panelists tallied up their assessments of the candidates’ responses to the 12 interview questions. As noted in the table above, Complainant received a total score of 184 while the Selectee received a total score of 168. Panelists determined that one candidate answered the leadership questions better while another candidate performed better during the technical portion of the interview. As a result, a second panel was convened. In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the Selectee. Billi D. v. Dep’t of Defense, EEOC Appeal No. 2021004238 (Sept. 27, 2022). Other indicators of pretext include deviations from standard procedures without explanation or justification and inadequately explained inconsistencies in the evidentiary record. Tammy S. v. Dep’t of the Army, EEOC Appeal No. 2021000578 (May 5, 2022). Complainant contends, in essence, that had normal selection procedures been followed, she would have been selected after the first round of interviews by virtue of her score being 16 points higher than that of the selectee. Instead, the panelists agreed to have a second round of interviews featuring Complainant and the Selectee only. The panelists unanimously agreed to a second round of interviews because they all thought that Complainant and the Selectee were the top two candidates, and each had performed better in separate categories of the interview questions. Complainant contends that during the second interview, the panelists (S2, S3, and GS) disadvantaged her by asking her a question regarding her relations with a coworker (CW). S2 and S3 responded that this was a proper question to ask in order to gauge the candidates’ leadership capabilities under pressure to deliver results despite adverse relationships and that they had posed a similar question to the Selectee. Agencies have broad discretion to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility. Santo D. v. Dep’t of State, EEOC Appeal No. 0120172768 (June 28, 2018). 2021003846 5 Moreover, selections for leadership positions often entail the use of subjective selection criteria. See Brown v. Dep’t of Homeland Sec., EEOC Appeal No. 01A45130 (Nov. 7, 2005) (for a leadership training position, the Agency could properly use subjective criteria in the selection process). The panelists were unanimous in their assessment that the Selectee had performed better during the second interview, particularly with respect to demonstrated leadership ability. 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. On the basis of the foregoing, we find that Complainant has presented neither affidavits, declarations, or unsworn statements nor documents from witnesses other than herself which contradict or undercut the explanations provided by Agency officials or which would cause us to question the truthfulness of those officials as witnesses. Regarding her overtime claim, when asked by the EEO Investigator why she believed that S1 declined to offer her overtime in retaliation for her having filed the instant complaint, Complainant averred that S1 was a “very spiteful man” who felt threatened by her. She also averred that S1 was feeling pressure from “a lot of closed-door discussions about my case” and was projecting that pressure onto her by denying her overtime. S1 reiterated that the only reason Complainant was not offered overtime was because she had taken annual leave the day before. The CHRO affirmed that managers were discouraged from calling back employees who were on approved leave and that S1 properly followed the guidelines set forth in the collective bargaining agreement when offering overtime opportunities to those employees who were present at the facility the day before. We find that the preponderant evidence is not sufficient to establish the existence of a retaliatory motive on the part of S1 in connection with his failure to offer Complainant the opportunity to work overtime on November 11, 2020. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final 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. 2021003846 6 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. 2021003846 7 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 February 14, 2023 Date