a Tricia B.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120151613 (E.E.O.C. Dec. 20, 2017)

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

a
Tricia B.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151613

Agency No. 13-00243-02506

DECISION

On March 31, 2015, 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
March 14, 2015, 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. 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

Complainant worked as a Deputy Administrative Director, NF-4, at the Marine Corps
Recruitment Depot (MCRD) in San Diego, California. Her position was located within the
Marine Corps Community Services (MCCS) Directorate. She applied for the position of
Operations Officer, also at grade level NF-4, but became aware on July 8, 2013, that she had not
been selected. On October 16, 2013, Complainant filed an EEO complaint in which she alleged
that the MCCS Deputy Director, her immediate supervisor (S1 - male), and the MCCS Director,
her second-line supervisor (S2 - male), discriminated against her on the bases of sex (female) and
age (63) by not selecting her. In particular, she 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.
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1. That S1 discriminated against her on the basis of age by not referring her to S2, who
served as the selecting official, for an interview on or around July 8, 2013; and
2. That S2 discriminated against her on the basis of sex by cancelling the selection process
and unilaterally reassigning the eventual Selectee into the position, effective July 18,
2013.

Complainant and forty-eight other individuals submitted applications for the Operations Officer
vacancy. The following qualifications were listed in the vacancy announcement:

• Four years of related experience in management and supervision;
• A baccalaureate degree in business administration or a related field is desired;
• Familiarity with MCCS management policies, concepts, practices, and principles;
• Ability to operate computer and associated software;
• Must have ability to deal effectively and tactfully with others;
• Must have excellent oral and written communication skills;

Investigative Report (IR) 27, 34, 126, 137, 148. According to S1, the four-year experience
requirement was the only “hard” qualification for the position. IR 118. The applications were
received by a Human Resources Specialist (HRS) who reviewed them and determined that thirty-
one applicants, including Complainant, met the four-year experience requirement. She presented
her assessment to her supervisor, the Human Resources Director (HRD), who reviewed them and
certified thirty-one applicants as being basically qualified. IR 36-39, 111-12, 137, 146, 148-49.

According to the HRD and the HRS, the selection process consisted of three phases: screening;
the initial interview; and the final interview. In the first phase, the hiring manager, S1, would
receive the certification list and would decide which of the thirty-one applicants to interview.
Those who were not selected would be referred back to the HRS, who would send out the
appropriate notification letters. For the initial interview, S1 would convene a 4-person panel to
conduct the interviews. S1 would serve as a panel member, along with two other subject matter
experts, and a representative from the Human Resources Office (HRO). The questions would be
reviewed by the HRO prior to the interviews. At the conclusion of the initial interview, the three
non-HRO panelists would compare the candidates’ scores and reach a consensus as to who to
refer to S2 for the final interview. S2 and one other official would conduct the final interviews,
after which S1 would make the final decision. IR 135-36, 147-48.

S1 averred that when he received the applications from the HRD, he applied the college degree
criteria, which resulted in another fourteen applicants being excluded, including Complainant,
who received notification of her non-selection on July 8, 2013. IR 85, 118-119, 126, 151. S1
then applied the third criteria – familiarity with MCCS management. After considering the
applications of the six candidates they invited for the initial interview, the panel ultimately
referred the top three to S2, including the eventual Selectee. IR 75-78, 119-20, 126, 140. The
Selectee was a 58-year-old male applicant who had fourteen years of experience as an NF-4
Auto Service Center Manager and a Master’s Degree in Business Administration. IR 42-43, 99-
103, 112, 122, 131.
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During the second phase of the process, S2 told S1 to have the panel interview a 28-year-old
female candidate (Candidate 1) who had a college degree but did not possess the four-year
experience requirement. IR 61, 79-83, 92-97, 120, 151. When asked by the investigator why he
referred Candidate 1 for an initial interview even though she did not meet the four-year
experience requirement, S2 replied that Candidate 1 was nevertheless highly qualified for the
Operations Officer position in that she had a Master’s degree, she was computer savvy, she
exceeded the qualifications in virtually every area and she was already serving as Acting
Operations Officer. S2 characterized Candidate 1 as extremely well qualified for the position,
notwithstanding that she did not yet have four years of experience. IR 128. Even though
Candidate 1 was given an initial interview, she was given the lowest score and was ranked 6th out
of six by the panel. She was not referred for a final interview. IR 75, 149.

After S2 had received the application packages and the recommendations from the panel, he
interviewed the two candidates who had the highest scores and the highest ranking, the Selectee
and Candidate 2. IR 127-29. S1 averred that he did not think that Candidate 2 should have been
referred to S2, but the majority of the panelists thought otherwise and he agreed to the consensus.
IR 120, 129.

After completing the two interviews, S2 chose the Selectee and offered him the position on July
9, 2013. IR 146. S2 then directed that the entire selection process be cancelled due to a
“procedural error.” IR 122, 152. When asked by the investigator what that error was, S2 replied
that Complainant had confronted S1 when she learned that she was not among the applicants
chosen for an initial interview before the panel. S2 further averred that when S1 informed him of
what had happened, he contacted Western Area Counsel’s Office (WACO), the MCRD’s legal
office, and was told that S1 should not have consulted with Complainant as to why she was
eliminated from consideration and that as a result of that error, the entire process should be
cancelled. S2 then directed S1 to instruct the HRO to follow WACO’s recommendation and
cancel the selection. IR 105-08, 127, 131, 141. S1 averred that he directed that the HRO use the
term “procedural error,” because the recruitment process had “strayed from the objective and
uniform application of the qualifying criteria.” IR 122.

On July 12, 2013, S2 posted an email in which he stated that the Selectee had been chosen for
the position and would be taking over on July 18, 2013. IR 152. S2 averred that immediately
following the cancellation of the selection process, the Selectee was laterally reassigned into the
position. IR 99, 101-03, 131. S1 averred that it had been his recommendation from the
beginning that the Selectee be given a lateral reassignment. IR 123. S2 stated that he decided to
open the position to competition in order to have a larger pool of candidates to draw from
because the MCCS was undergoing a substantial reorganization. IR 132.

At the conclusion of the 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). In accordance with Complainant’s request,
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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.

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”).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

As to Complainant being screened out prior to the initial interview, S1 averred that although
Complainant met the experience requirement, she lacked a college degree, and that in order to
winnow the field, he had excluded from further consideration all of the applicants who did not
have at least a bachelor’s degree. Regarding the cancellation of the selection process, S2 averred
that he had done so upon the advice of the MCRD’s legal advisor.

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To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanations are pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC
Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied, EEOC
Request No. 0520080211 (May 30, 2008).

In non-selection cases such as the one now before us, Complainant could demonstrate pretext by
showing that her qualifications for the position were plainly superior to those of the Selectee.
Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). She must
bear in mind, however, that agencies have broad discretion to choose among equally qualified
candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept.
of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). Agencies may select
candidates with fewer years of experience if they believe that such candidates are best qualified
to meet the needs of the organization. Complainant v. Dept. of Justice, EEOC Appeal No.
0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the preselection is
not premised upon a prohibited basis. Complainant v. Dept. of Homeland Security, EEOC
Appeal No. 0120132858 (Mar. 9, 2015).

When asked by the investigator why she believed that her age played a role in her being screened
out from further consideration by S1, Complainant pointed to S1’s decision to interview
Candidate 1 in spite of the fact that this applicant did not possess four years of experience. The
affidavits of the HRD and the HRS corroborate that of S1, who stated without equivocation that
he declined to refer Complainant’s application to S2 because she lacked a college degree. S1
also stated that he interviewed Candidate 1 because S2 told him too. Ultimately, S1’s act of
interviewing Candidate 1 had no impact upon Complainant’s prospects for getting the job
because the panel gave Candidate 1 the lowest score and ranking. Complainant has not
presented affidavits, declarations, or unsworn statements from witnesses other than herself or
documents that contradict the explanation offered by S1 for screening Complainant’s application
during the first phase of the process or that call his veracity into question. We therefore find, as
did the Agency, that S1 did not discriminate against Complainant on the basis of age when he
eliminated her from further consideration at the first stage of the selection process.

We now consider S2’s decision to cancel the selection process and unilaterally reassign the
Selectee to the position. Deviations from standard procedures without explanation or
justification are another indicator of pretext. Mellissa F. v. U.S. Postal Service, EEOC Appeal
No. 0120141697 (Nov. 12, 2015). Nevertheless, it is clearly within management’s prerogative to
cancel a vacancy announcement, so long as the decision to do so was not for discriminatory
reasons. Jeannie T. v. Dept. of Labor, EEOC Appeal No. 0120140581 (Dec. 2, 2016) citing Ross
v. Dept. of the Navy, EEOC Request No. 05920105 (Mar. 26, 1992).

When asked why she believed that S2’s decision to cancel the selection process and unilaterally
reassign the Selectee into the position was discriminatory because of her sex, Complainant
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responded that the recruitment action was cancelled because she had filed an EEO complaint,
and that the selection process had substantially deviated from the normal procedures and had
been done in secret, with no transparency at all. IR 112-13, 131. As to Complainant’s
contention regarding her EEO complaint, according to the EEO Counselor’s report and the
affidavits of S1 and S2, the EEO Counselor did not contact S2 until August 15, 2013, more than
a month after he had reassigned the Selectee into the Operations Officer position. IR 3-4, 122,
131, 146. On the basis of this information, we find that the fact that Complainant had filed her
EEO complaint could not have impacted S2’s decision to cancel the selection process and
reassign the Selectee.

What prompted S2 to contact the MCRD’s legal office was the fact that on or around July 8,
2013, after Complainant had received notification that she had been eliminated from further
consideration, Complainant had contacted S1 to inquire as to the reasons for that determination
after having been informed by the HRO that she had met the basic qualifications for the position.
To the extent Complainant contends that the conversation between her and S1 and S2’s ensuing
response constitute evidence of pretext, we disagree. There are no indications anywhere in the
affidavits of Complainant or S1 regarding the substance of their conversation, particularly
whether Complainant’s gender, prior EEO activity, or current EEO complaint were ever brought
up. 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. And for the
Commission to conclude, on the basis of the evidentiary record now before us, that the
cancellation of the selection process in response to Complainant’s conversation with S1 about
her elimination from consideration was an act of sex discrimination would be nothing but
speculation.

Complainant has not been able to establish the existence of a causal connection between her
gender and S2’s decision to reassign the Selectee into the position. The fact remains that the
Selectee had been offered the job and had accepted the offer before S2 went ahead with the
cancellation. IR 4. It is also an undeniable fact that S2 did not act on his own in cancelling the
selection process. He did so only after consulting with the Agency’s legal advisor’s office. The
record establishes that reassignment was available as an option at the outset, but that S2 had
decided that he wanted to choose from a larger pool of candidates, so he opened the vacancy to
competition. We agree with the Agency that Complainant has not met her burden to prove, by a
preponderance of the evidence, that her gender was a motivating factor in S2’s decision to
unilaterally reassign the Selectee to the position of Operations Officer.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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 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.
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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

December 20, 2017
Date