Virgilio M.,1 Complainant,v.Ashton Carter, Secretary, Department of Defense, (Department of Defense Education Activity) Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0120142901 (E.E.O.C. Jan. 6, 2016)

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

Virgilio M.,1
Complainant,

v.

Ashton Carter,
Secretary,
Department of Defense,
(Department of Defense Education Activity)
Agency.

Appeal No. 0120142901

Agency No. DD-FY13-126

DECISION

On August 15, 2014, Complainant filed an appeal from the Agency’s July 30, 2014 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant unsuccessfully applied for the position of Secretary to the Principal at two
elementary schools within the Dependent Elementary and Secondary School System in Fort
Knox, Kentucky: Pierce Elementary School (PES) and Mudge Elementary School (MES). On
October 3, 2013, Complainant filed a complaint in which he alleged that the PES Principal, in
her capacity as the selecting official for the Pierce position (SO1) and the MES Principal, in
her capacity as the selecting official for the Mudge position (SO2) discriminated against him on
the basis of gender by not selecting him for either vacancy.

Complainant and the eventual selectees were all on the certificate of eligibles that was referred
to SO1 and SO2. Investigative Report (IR) 157, 212-14. SO1 averred that she and SO2 had

1This 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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decided to conduct their interviews jointly since they were operating from the same certificate.
IR 267. Complainant and the selectees were among those chosen to be interviewed. IR 268,
287. With SO2 present, SO1 conducted the interviews by telephone, asking all of the
applicants the same set of ten questions. IR 252. Although both SOs scored all of the
applicants, they did not combine their scores since they were going to hire their own
Secretaries. Out of a maximum possible score of 50 points, the SOs scored the candidates on
their interview responses as follows:

SO1 Complainant: 43/50 PES Selectee: 47/50
SO2 Complainant: 44/50 MES Selectee: 48/50

IR 163-64, 178-81, 223-24, 247-48, 299-300. On the basis of the candidates’ written
applications and interview responses, SO1 chose the Pierce Selectee while SO2 chose the MES
Selectee. IR 169-70, 228-29, 236.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
On April 16, 2014, Complainant requested a final decision without a hearing. In accordance
with Complainant’s request, the Agency issued its decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selections
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those selections. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim,
Complainant would have to prove, by a preponderance of the evidence, that SO1 or SO2 were
motivated by unlawful considerations of Complainant’s gender in connection with their
decisions not to hire him. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by showing that the reasons articulated by SO1 and SO2 for not selecting
him were a pretext. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing
Burdine, 450 U.S. at 253. Where nonselection is at issue, proof of pretext can take the form
of a showing that Complainant’s qualifications for the position were plainly superior to those of
the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721
(December 3, 2015). Complainant can also demonstrate pretext by presenting evidence of
discriminatory statements or past personal treatment attributable to SO1 or SO2, comparative
or statistical data showing differences in treatment across gender lines, unequal application of
Agency policy, deviations from standard procedures without explanation or justification, or
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inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States
Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that his gender was a motivating factor in
decisions by SO1 and SO2 not to hire him at their respective schools, Complainant initially
replied that he had many more years of experience in varied work environments than either
selectee had. IR 252-53. He also averred that SO1 explicitly asked him what his thoughts
were about working in a position that is typically encumbered by a female. Third, he stated
that SO1 had mischaracterized, as an indicator of an unstable work history, the fact that he had
worked in many jobs for short periods of time, and that this could have been explained by the
need to follow his wife whenever she changed jobs. Fourth, he averred that SO1 failed to
check his references. Finally, he points out that he was selected for a temporary secretarial
position in one of the Agency’s high schools in Europe in November of 2013, which proved
that his qualifications were plainly superior to the qualifications of the PES and MES Selectees.
IR 260. Complainant contends, based on these factors, that the only possible reason for not
hiring him was based on his gender. IR 254-56.

SO1 averred that the PES Selectee had a business degree, years of clerical experience and a
vast knowledge of office management, and that she had displayed that knowledge during her
interview. SO1 also emphasized that the PES Selectee was able to concretely articulate her
abilities and contributions and had excellent references. IR 270. SO1 further testified that the
MES Selectee had been employed at Fort Knox High School for many years and was
intimately familiar with the organizational system.2

She maintained that the two Selectees
performed better than Complainant during the interview. Her assessment is supported by the
interview score sheets the SOs prepared for the candidates at the end of each interview. In
addition, SO1 pointed out that the two Selectees were better able than Complainant to link their
background and experience to the needs of the position. IR 271, 277.
SO1 acknowledged that Complainant performed well in many varied jobs, but pointed out that
having an extensive resume does not necessarily make one the best school secretary. IR 274,
276. SO1 admitted to having concerns about the fact that Complainant had a multitude of jobs
as an indicator of his employment stability. As to her alleged failure to check Complainant’s
references, SO1 testified that it was their normal protocol not to contact a candidate’s
references until they had made the decision that they were going to select that candidate, and
that they already made the decision not to select Complainant. IR 274. Finally, SO1 averred
that she did ask Complainant how it felt to be in a position that was traditionally held by a
woman, but stated that it was in response to Complainant’s comments that in his then-current
job, he was the only male in an office with so many females, and that he often had to run the
office by himself. IR 272.

2The MES Selectee declined the offer, but SO2 subsequently selected another candidate with
whom she was equally impressed. IR 187-87, 191-92, 197-200.
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The statutes the Commission enforces cannot prevent employers from making hiring decisions
that applicants disagree with unless those decisions are rooted in an expressly prohibited
consideration such as sex. And on this crucial issue, Complainant did not provide evidence of
any of the above-referenced indicators of pretext beyond his own assertions. He has not
submitted any sworn statements from other witnesses or documents that contradict the
explanations provided by SO1 or SO2, or which call their veracity into question, particularly
with regard to SO1’s question to Complainant about how he felt about working in a job
normally held by a woman. The fact that Complainant subsequently received an offer of a
similar job in Europe does not establish that his qualifications were plainly superior to those of
the selectees. Rather, it tends to confirm the SOs’ assessments that all of the candidates they
interviewed, including Complainant, were highly qualified for those jobs, and that any one of
them could have been chosen. We therefore agree with the Agency that Complainant failed to
establish the existence of unlawful considerations of his gender on the part of SO1 or SO2 with
respect to their decisions not to select him for the PES or MES secretarial positions.

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 (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.

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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.

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

January 6, 2016
Date