Abe U.,1 Complainant,v.Eric Fanning, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 3, 2016

0120141099 (E.E.O.C. Mar. 3, 2016)

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

Abe U.,1
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120141099

Hearing No. 550-2012-00298X

Agency No. ARSIERRA11SEP04179

DECISION

Complainant filed an appeal from what became the Agency’s final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. The
Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). Our
review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Production
Controller, GS-1151-11, at the Agency’s work facility in Herlong, California.

On November 16, 2011, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him and subjected him to a hostile work environment on the
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.

0120141099

2
bases of his sex (male), age (59), and in reprisal for his prior protected EEO activity under
Title VII and the ADEA when:

1. On November 17, 2010, the selecting official did not select Complainant for either
of the two positions of Supervisory/Lead Production Controller, GS-1152-12, for
which he interviewed. 2

2. On April 15, 2011, the selecting official asked Complainant his age pertaining to
the Lead Production Controller position.

3. On September 21, 2011, Complainant was notified that he was not selected for the
Lead Production Controller, GS-1152-12 position, and that another employee was
selected who Complainant alleged did not have specialized experience and time in
grade.

The Agency did not complete its investigation within 180 days of the filing of the formal
complaint. Complainant subsequently requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Over Complainant's objections, the AJ
assigned to the case granted the Agency’s Motion for Summary Judgment and issued a decision
without a hearing on November 20, 2013.

The AJ found that no discrimination occurred. The record reflects that Complainant applied
for the position of Lead Production Controller, GS-1152-12, and he was one of five candidates
deemed eligible and placed on the referral certificate. Complainant had completed an
occupational questionnaire which required applicants to conduct a self-assessment of his or her
relevant work experience by answering several automated questions. Based on these
responses, a numerical rating was produced through an automated process. The Human
Resources Specialist stated that Complainant had the highest score among the candidates on the
referral certificate.

The AJ stated that the selecting official reviewed the referral certificate and the candidates’
application materials. The selecting official eliminated two of the candidates from
consideration because they lacked experience working at the Depot. An interview panel was
convened for Complainant and the two other applicants. The selecting official prepared an
interview form presenting the questions and suggested responses, and the form also contained
guidance for rating each candidate’s response on a scale of 0-5 by comparing it with the model
responses. Upon conclusion of the interviews, each panel member rated Complainant last
among the candidates. The AJ noted that Complainant received a total score of 100 and the
two other applicants received scores of 183 and 172, respectively.

2 We find that Complainant abandoned claim (1) as he did not present any argument or
evidence in support of these claims in the instant appeal, in his Response to the Agency’s
Motion for Summary Judgment, or in his Cross Motion for Summary Judgment.

0120141099

3

The selecting official chose the candidate with the highest interview score, age 29, female.
The applicant with the second highest score was selected as the first alternate and Complainant
was assigned the second alternate. Complainant subsequently filed a complaint with the Office
of Special Counsel concerning his nonselection. An Office of Special Counsel investigation
disclosed that the Human Resources Specialist had mistakenly deemed the selectee qualified for
the position as she did not meet the time-in-grade requirement. The offer of employment to
the selectee was rescinded and the selecting official proceeded to select the first alternate
candidate, who was promoted effective November 20, 2011.

The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for selecting a
candidate other than Complainant for the position at issue. The Agency focused on the
interview panel’s unanimous rating of Complainant, which was lower than the two other
candidates. The AJ observed that one panel member stated that Complainant did poorly during
the interview as he failed to grasp the relevant issues raised in the questions. According to this
panel member, Complainant gave deficient responses to four questions. The AJ noted that
another panel member stated that she gave Complainant a low score because his responses to
several questions did not include the important points stated in the model answers. With
regard to the third panel member, he stated that he issued Complainant low scores for several
of his responses because he was very fast and did not cover much of the information that was
required to be answered in those questions. The AJ stated that this panel member explained
that the initial selectee provided more comprehensive responses and addressed more points
specified in the model answers. The AJ noted that the panel members stated that no one,
including the selecting official, had any influence on their independent evaluation of the
candidates.

The AJ stated that the selecting official explained that he utilized the panel’s rankings and
selected the highest rated applicant. The selecting official asserted he had no role in verifying
whether the initial selectee had fulfilled the time-in-grade requirement since he had relied on
the Office of Human Resources. The selecting official stated that once he was informed of the
error pertaining to the initial selectee, he selected the candidate who had the second highest
score from the interview panel. The AJ observed that the Human Resources Specialist
acknowledged that he erred in calculating the initial selectee’s time-in-grade.

The AJ noted that Complainant attempted to establish pretext by arguing that he was more
qualified than both selectees based on his greater work experience. Complainant states that his
qualifications included working as a Production Controller for seven and a half years, his
designation as a Lead Production Controller for the year prior to the final selection and his
designation as the Acting Supervisor of the duty section on nine occasions, claiming his special
training and overall tenure with the Agency rendered him clearly superior to the selectees.
Complainant stated in contrast, the initial selectee only had one-eighth of his experience in time
in grade as a Production Controller. As for the final selectee, Complainant asserted that he
had worked at the Depot as a Production Controller, GS-11, for one year and nine months, a
Production Controller, GS-9, for about one and one-fourth years, and another eleven months

0120141099

4
as a Management Assistant, GS-7. Complainant further argued that his self-assessment earned
a perfect score of 100 in contrast to the selectees who each received a score of 89.

The AJ found that Complainant’s contention regarding his prior work experience was
insufficient to establish pretext. The AJ pointed out that despite Complainant’s work
experience, he was unable to perform well during the interview as he failed to mention several
salient points enumerated in the model interview responses. The AJ noted that despite
Complainant’s argument that the selecting official manipulated the interview process,
Complainant did not provide any support for this assertion. The AJ stated that Complainant
also did not demonstrate that the Agency’s heavy reliance on the interview was unreasonable.
With regard to the mistake made as to the initial selectee’s time-in-grade, the AJ stated that
Complainant did not present evidence to contradict the Human Resources Specialist’s assertion
that it was a honest error rather than an act motivated by discriminatory intent.

The AJ observed that a Lead Management Analyst commented that the selecting official did
not choose Complainant because he was frustrated with the time it was taking him to address
another individual’s EEO complaint. The AJ did not consider this argument persuasive as the
AJ stated it was not necessarily connected to any retaliatory animus toward Complainant. With
regard to the selecting official asking Complainant how old he is, the AJ reasoned that such a
stray remark is insufficient to demonstrate that the explanation articulated by the interview
panel or the selecting official was pretextual.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final order pursuant to 29 § C.F.R. 1614109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in deciding there are no issues of material
fact in dispute. Complainant argues that his overwhelming superiority in qualifications over
both selectees refutes the Agency’s reason for his nonselection. Furthermore, Complainant
argues that the selecting official manipulated the interview process by improperly developing
questions that addressed hypothetical situations rather than emphasizing experience.

In response, the Agency asserts that Complainant failed to establish a prima facie case of sex
discrimination since a male was selected for the position. The Agency states that Complainant
did not set forth a prima facie case of age discrimination given that both Complainant and the
selectee were over the age of forty. The Agency maintains that there is no evidence
connecting the selecting official’s age inquiry to the selections. The Agency asserts that
Complainant did not establish a prima facie case of reprisal given that he contacted the Office
of Special Counsel and the Agency’s EEO Office after he learned of his nonselection on
September 21, 2011.

0120141099

5

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Disparate Treatment/Reprisal

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 she 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).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. We shall assume arguendo that Complainant has set forth a
prima facie case of discrimination under each of the alleged bases. The Agency explained that
Complainant was not selected for the Lead Production Controller position based on his poor
performance during his interview. Complainant was ranked third among the three candidates
after their interviews. Complainant’s score was substantially behind that of the other two
candidates. The members of the interview panel explained that Complainant’s responses
frequently did not include the important points in the model answers. We find that the Agency
has articulated legitimate, nondiscriminatory reasons for its nonselection of Complainant.

With respect to the arguments Complainant advances to establish pretext, we acknowledge that
Complainant possessed significant qualifications that warranted consideration for the position.
However, despite such impressive credentials, the interview was clearly an important aspect of
the selection process, and Complainant’s performance during the interview was deficient
compared to the selectees. Complainant argues that the selecting official manipulated the
interview process by improperly developing questions that addressed hypothetical situations
rather than emphasizing experience. We do not consider interview inquiries that focus on
hypothetical questions as being out of the ordinary and such questions are not indicative of
discriminatory intent.

0120141099

6

With regard to the selecting official asking Complainant how old he is, the question by itself,
without further evidence, does not establish that age discrimination occurred particularly in
light of the interview panel’s unanimous opinion that Complainant clearly had the worst
interview performance. Upon review of the record, we find that Complainant has not
established that the Agency’s explanation for his nonselection was pretext intended to hide
discriminatory intent.

CONCLUSION

The Agency’s final order is AFFIRMED.

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.

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).

0120141099

7

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 3, 2016
Date