U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelsie T.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019005741 Hearing No. 410-2016-00206X Agency No. 9R1M15054F19 DECISION On July 31, 2019, 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 24, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Program Analyst, GS-0343-09, at the Agency’s 78th Air Base Wing at Robbins Air Force Base, Georgia. On July 1, 2015, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity when she learned on April 17, 2015, that she was not selected for the position of Supply Systems Analyst, GS-2003-11 pursuant to Vacancy Announcement No. 9R-Robins-1295845-286150-PR. 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. 20190057412 After an 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). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). To establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination/retaliation. 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); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its conduct in this matter. According to the record, the primary purpose of the position at issue was to perform procedural, systematic analysis and standardization evaluation functions pertaining to the automated supply systems, to include analyzing, developing, evaluation or promoting improvements in the policies, plans, methods, procedures, systems or techniques of the Supply Systems. The vacancy announcement also indicated that the incumbent for the position would require knowledge, skills 20190057413 and abilities (KSAs) including, but not limited to, knowledge of supply principles, concepts and methodologies of supply program operations as well as the ability to collect, analyze and interpret data to measure success or failure through the effective and efficient use of audits and investigations. On January 26, 2015, twenty-one internal and external candidates including Complainant were referred to the selecting official for consideration for the position. The candidates’ resumes were reviewed and scored by a three-member selection panel. Resumes were ranked based on points in the categories of experience, awards, education and training/self-initiated. Complainant and five other candidates with the highest resume scores were selected to be interviewed by the selection panel. All candidates were given fifteen minutes to answer questions on three topics. The selection panel scored their responses. On February 11, 2015, an external candidate was selected to fill the position. According to Agency witnesses, Complainant’s interview, conducted telephonically, lasted approximately two minutes. During the interview, Complainant did not fully address interview topics or demonstrate basic knowledge of the areas questioned. The interview panel said they found that Complainant’s responses were very short which made it difficult to determine the extent of her knowledge on various topics. The eventual selectee’s interview lasted approximately twelve minutes and in contrast to Complainant, the panel determined from her responses that she had more experience working with more supply networking programs and working in different supply areas. The panel further indicated that the selectee provided more in-depth responses to questions. The record indicates that the selectee possessed a master’s degree, had prior GS-11 experience and relevant job-related training. The selectee received the highest rating of all the candidates and was recommended for the position. Once the responsible management officials have articulated the reasons for the selection made, the burden shift back to Complainant to prove, by a preponderance of the evidence, that these proffered reasons are a pretext designed to mask discrimination. The Commission has long held that an agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, however, Complainant has failed to make this showing. Neither she nor the record provide any persuasive evidence that Complainant was so better qualified for the position than the selectee that discrimination could be inferred from her non-selection. The record also does not contain any evidence whatsoever that the selecting officials considered Complainant's with regard to the non-selection. 20190057414 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 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 20190057415 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 August 31, 2020 Date
