Arica C.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171034 (E.E.O.C. Nov. 30, 2018)

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

Arica C.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120171034
Hearing No. 480-2015-00649X
Agency No. PE-FY13-121

DECISION

On December 6, 2016, 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
November 28, 2016, 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 (FAD).

ISSUES PRESENTED

Whether the FAD correctly concluded that Complainant failed to show by a preponderance of
evidence that the Agency’s selection decisions were motivated by discrimination; and (2) whether
Complainant established that she was discriminated against based on national origin, age, and
reprisal (prior EEO activity) when:

(1) in the summer of 2013, she was not selected for promotion to Principal at two schools
in the Agency’s Okinawa District; and
(2) in the summer of 2014, she was not selected for promotion to Principal at four schools
in the Okinawa District.

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.
0120171034

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal
(AP) at the Agency’s school district in Okinawa, Japan. On November 6, 2014, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of national
origin (Hispanic), age (58), and reprisal for prior protected EEO activity under Title VII when she
was not selected for various principal positions in Okinawa, Japan during 2013 and 2014. The
Agency explained that Complainant was not selected for the positions to which she applied
because she did not rank as high as the selected candidates on her applications and the interviews;
and that her national origin, age or prior EEO activity were not determining factors.

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. 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.

Claim 1

Complainant alleged that, in the summer of 2013, she was not selected for promotion to Principal
at two schools in the Agency’s Okinawa District by the District Superintendent (DS), the selecting
official, because of her national origin, and her age. She stated that she was qualified for the
principal positions but substantially younger non-Hispanics were selected. The two schools were
the Bob Hope (BH) school, and the Amelia Earhart (AE) school. C1, the AE school selectee, was
the previous Assistant Principal at Kubasaki High School (Caucasian, DOB: October 27, 1975),
and C2, the BH school selectee, was the previous Assistant Principal at Bechtel Elementary School
(Caucasian; DOB: May 23, 1976).

DS explained that Complainant’s initial score was too low to make “the cut” to have her name
included in the initial pool of qualified applicants. DS explained, however, that he was concerned
by Complainant’s omission from the pool because he thought that she was among the better
assistants in the district; therefore, he asked for and received an expanded list of internal candidates
which included Complainant’s name. Ultimately, however, Complainant was still not selected.
DS indicated that Complainant’s national origin or age were not determining factors.

DS explained that, upon reviewing the second list, 22 candidates, including Complainant, were
identified for further processing. They were asked to submit written responses to the same five
(5) questions. The responses were ranked. DS explained that he then summarized and ranked the
Educator Career Program (ECP) applications, which was the initial screen. C1 and C2 had
received ECP scores of 72 and 70. Complainant received a score of 60. The top seven (7)
candidates, which included Complainant, were interviewed by telephone. DS stated that
Complainant interviewed well and was ranked in the top four for each position. DS stated that the
0120171034

3
selectees ranked higher than Complainant in both their ECP scores, their pre-interview written
responses, and their interviews. He added that the selected candidates were the “best possible fit”
for their respective schools; and that Complainant was not significantly more superior in her
qualifications and experience than those selected candidates. He maintained that the two selectees
spoke more directly to the use of data in decision-making, and to student-centered approaches than
did Complainant.

Complainant claimed that DS, to mask his discriminatory motives, had the referral list expanded,
and interviewed her but ultimately did not select her. Complainant stated that she was significantly
more qualified for both positions because while all candidates possessed Masters Degrees, she had
two. Additionally, she maintained that she had more teaching experience at the elementary level
than either selectee, and possessed the strong Special Education (SPED) credentials needed at both
schools.

DS indicated that C1 ranked higher than Complainant in the ECP application as she was on the
original referral list. He maintained that C1 was better able to articulate a vision for where she felt
she could lead the school. He stated that based on her experience in secondary schools, she felt she
could have a greater influence on students before they tended to become disengaged. He noted
from her experience with the Advancement Via Individual Determination (AVID) program and
the upcoming expansion of AVID to the elementary schools, she saw the AE school as being an
ideal place to try components of the AVID program at the elementary level. He also asserted that
C1 also discussed support of the Science, Technology, Engineering, and Mathematics (STEM)
initiatives as an area she would emphasize. Finally, he stated that she ranked highest among the
seven candidates for the position.

DS indicated that C2’s responses indicated a more thoughtful and proactive approach to problem-
solving. He noted that she had experience as an Assistant Principal, in both the closing and opening
of the school year, as the lone administrator in her previous school, because the Principal at Bechtel
Elementary School had been promoted and no replacement had been named until over a month
into the school year 2012/2013. He contended that C2 was also among the 15 candidates on the
original referral list.

DS indicated that Complainant, as well as all the other candidates, was well-qualified for the
positions at issue. He explained that the selection process was designed to get the best match of
skills, experience, and vision to lead the schools. He stated that it was a competitive process and
each position was surrounded by differing circumstances and/or needs and the timing when a
vacancy occurred or when approval to fill a vacancy occurred may have resulted in varying the
process to meet the needs of the schools. He reiterated that they were very fortunate to have a pool
of qualified candidates for the BH and AE Principal positions from which to select. He also stated
that he felt fortunate he could have recommended any of the candidates they had to any
superintendent as possible principals for the vacancies.
Claim 2

0120171034

4
In August 2014, Complainant became AP at the Ryukyu Middle School (MS) in Okinawa. Earlier
that year, she applied to four vacant principal positions that opened in the Okinawa District in the
summer of 2014. These schools were the BH school (vacant after only 1 year); the Lester Middle
School (LS); the Kubasaki High School (KHS); and Bechtel Elementary School (BES). DS was
the selecting official for all four vacancies. Complainant stated that she was not interviewed for
the LS or KHS positions, and though she was interviewed for the BH and BES positions, she was
not selected.

The LS and KHS positions

Complainant responded to the pre-interview questions for the LS position, but was not interviewed.
She was not provided pre-interview questions for the KHS position. Complainant believed that
she was not provided the questions in retaliation for her previous EEO activity. Complainant also
indicated that she should have been interviewed due to her 27 years of secondary teaching
experience, five years of experience as a college instructor, three years of experience as a Special
Education Coordinator, and for holding two master’s degrees and certification in school
administration for the secondary level.

She felt her qualifications were superior to the selectee for the LS position, C3, given her “decades”
of secondary school experience and that she was the Special Education Coordinator for 13 schools.
She also was the site-administrator for the BH school for six months, and received excellent
evaluations. She also knew the districts, schools, and had been a “valuable, collegial team player
throughout.”

DS asserted that Complainant was not interviewed for the LS position since only the top seven of
the 31 candidates who were provided the opportunity to respond to pre-interview questions were
interviewed. Complainant’s responses were ranked 13th due to her having no secondary (middle
or high school) administrative experience as well as her responses to the pre-interview questions.
He denied Complainant’s race, age or EEO activity as the reasons she was not interviewed

Regarding the KHS position, he indicated that only the three applicants with secondary
administrative experience were invited to respond to pre-interview questions. Complainant lacked
the secondary administrative experience deemed necessary, particularly scheduling and manning
a high school. DS indicated that the KHS position required a vast knowledge of high school
practices and procedures.

The BES position

Complainant stated that she interviewed excellently and responded to all questions with
sophistication and clarity. She maintained that she was interviewed via telephone by a white
interview panel, which was of concern since the panel excluded racial minorities. She was not
aware of C4’s, the selectee, qualifications; however, she believed her educational experience and
professional background exceed what was required of a principal.
0120171034

5
She maintained that teachers must be hired locally unless there are no qualified educators and that
the “dearth of Hispanic principals in the Agency is well documented.” She claimed that principals
hired by DS have been all white with no prior EEO activity. She also claimed that DS selected two
minorities in 2014 because of her exposing him.

DS stated that Complainant was one of six candidates interviewed. The panel independently rated
candidates and then provided a ranking based on the candidates’ responses to the questions.
According to DS, it was not that Complainant lacked anything; however, C4 was a better fit for
the position. DS stated that he did not know C4 at the time of the selection.

PM1, a panel member, stated that DS provided the panel with the rating criteria. She asserted that
the panel rated candidates independently, then tallied and discussed their ratings. She rated
Complainant as the top candidate and C4 a close second. The panel discussed that C4 was an
experienced principal and had recently turned a school around shortly before an accreditation visit.
BES was facing an accreditation visit, so C4 was a good fit. She recalled that PM2 did not think
Complainant was a good fit because of her problems with dealing with a commander and her lack
of social skills. She further recalled that PM3 felt that someone from the outside with experience
would be the best fit for BES. PM1 does not recall DS saying anything to influence how panel
members rated candidates. She believed the process was fair and that Complainant was not
discriminated against. She maintained that it was a group decision, not DS on his own, that resulted
in C4’s selection.

The BH position

Complainant declared she did an excellent job on the interview, referencing her actual experiences,
research, and highlighted the positive climate she created at BH school. It was a telephone
interview, so she did not know if the panel took notes. She believed she offered more educational
background and more experience at the primary school and elementary level. She also served as
an Acting Principal for six months and had been an Assistant Principal for four years.

DS stated that Complainant was one of five candidates interviewed, and that the panel rated
candidates independently of each other. He denied that he or the other panel members attempted
to influence the ratings of the candidates, and that he did not consider race or EEO activity in his
ratings and he did not believe the other panel members considered race or EEO activity. He
determined that C5 was the top candidate. The panel agreed. He indicated that one response by
Complainant “was taken as being non-supportive of early childhood education and resulted in a
very low score for her on that part of the interview – that question dealt with teaching spelling in
the primary grades and was ranked lowest by the panel members.” Complainant was rated third of
the five candidates interviewed.
PM4, a panel member for the BH position, stated there was no set criteria for rating the interviews;
rather, each panel member rated the interviewees independently “based on their own educations
experience and the interview would serve in the capacity being considered.” He recalls rating the
selectee, C5, as number one or two.
0120171034

6
C5 had been serving in the Okinawa District as the Assistant Principal at Killin Elementary School,
but moved to the Assistant Principal of AE school at the beginning of the 2014 school year.
Complainant, he stated, did well on the interview; however, she undermined her ability to lead by
discussing personal issues counter to current educational trends and procedures in a couple of her
responses.

PM4 denied considering race or EEO activity in his rating of candidates. He denied DS nor other
panel members influenced how he rated candidates. He did not believe Complainant was
discriminated against due to her race or EEO activity. Rather, C5 was selected based on being the
top recommended candidate and receiving the Superintendent’s endorsement for the selection.

PM5 stated that DS and the other panel members did not attempt to influence her ratings.

PM6 stated that the panel totaled their own scores of candidates then checked for “out liners” and
totaled again; they came up with the same candidate both times. She determined that C5 was the
top candidate. Complainant, she stated, did not answer the questions regarding reading and
curriculum and emphasized the need to get rid of spelling, which she thought was strange since
Complainant had been at BH school for a year or two and should have known the program, and
assessments. PM6 indicated that she did not consider the race or EEO activity of the candidates,
and denied that DS or any other panel member influenced her rating of candidates.

CONTENTIONS ON APPEAL

Complainant’s statement on appeal is limited to only the non-selections set forth in Claim 1.
Complainant, among other things, contends there were factual and legal errors in the FAD that
should result in the FAD being reversed and a finding of discrimination against the Agency.
Complainant contends her race was a factor in her non-selection for the BH and AE positions
because she was the only Hispanic administrator in the role of Assistant Principal in the Agency.
She claimed the data indicated that Hispanics were not hired as Principals and that the Pacific
Area, including Okinawa, did not have any Hispanic Principals, limiting the diversity pool. She
also maintained that some of the selectees had less education, and experience than her, and that
she demonstrated her skills and ability to lead a school, but had still not been selected for a
Principal position. Complainant contends C1 and C2 were “poorly qualified younger white
educators.” She also maintains that her protected EEO activity of confronting discriminatory
practices resulted in her non-selection to the BH and AE positions. Complainant’s brief also
contains a chart that purports to show that even white employees who have been accused of
misconduct have been elevated principal positions in the past by the Agency.

The Agency only responded to Complainant’s contentions for the two selections associated with
Claim 1, and argued that because Complainant made no argument challenging its findings
regarding the four selections associated with Claim 2, she waived her right to appeal those matters.

0120171034

7
The Agency also contends that while Complainant proved a well-qualified and highly-rated final
candidate for selection, the record reflects that she was not superior to either of the two selectees
who were not the “poorly qualified young white women,” Complainant claims because they each
rated higher than Complainant in their responses to identical pre-interview questions rated by the
selecting panelists. The Agency maintains that, among other things, Complainant and the two
selectees all had similar AP experience, had obtained advanced graduate degrees, and had
experience with special education even though Complainant had more teaching experience, and
an additional master’s degree.

The Agency also argued that Complainant’s claim that Hispanics were not promoted in the school
district is not accurate because DS promoted her to the position of assistant principal. Therefore,
Complainant can point to no evidence supporting a claim that DS acted on any discriminatory or
retaliatory basis.

The Agency asserts the chart that Complainant included in her appeal brief to identify comparators
who had received more favorable treatment does not contain relevant or probative information that
is verifiable by the record. The Agency also asserts that even if the information in the chart could
be verified, none of the individuals Complainant identified are similarly situated to her, because
none applied for the positions at issue, acted during the timeframe of this complaint, or were rated
or selected for their positions by DS. Moreover, the Agency maintains, there is no evidence
presented by Complainant to establish the individuals’ actual race, age, or EEO activity.

Finally, the Agency states that Complainant assertions of legal and factual errors in its FAD is
vague and lacks evidentiary support.

STANDARD OF REVIEW

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”).

At the outset, we note that the Commission has the discretion to review only those issues
specifically raised in an appeal. Because Complainant does not specifically contest the Agency’s
findings regarding the four (4) non-selections associated with Claim 2, these matters will not be
addressed in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110),
Chap. 9, § IV.A. (Aug. 5, 2015) (“Although the Commission has the right to review all of the
issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically
raised on appeal.”).
0120171034

8
ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To meet her burden of proving that the Agency’s actions were pretextual, Complainant needs to
demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No.
0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).

In a nonselection case like this, one way that a complainant can show pretext is by establishing
that the alleged disparities in qualifications between them and the selectee are “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [them] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th
Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).

Assuming, arguendo, that Complainant established a prima facie case of national origin, age and
reprisal discrimination with respect to claim 1, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Here, Complainant has alleged that her non-selections
were based on her national origin, age and reprisal when she was not selected for principal position
at the BH and AE schools. However, the Agency explained that Complainant was not selected for
the positions because she did not rank as high as C1 and C2 on her applications, pre-interview
questions and her interviews; and that her national origin, age or prior EEO activity were not
determining factors.

We find no persuasive evidence of pretext. Complainant has simply not established that her
qualifications were so plainly and observably superior to those of C1 and C2 that no reasonable
person would have chosen them over her, absent discrimination. Employers have broad discretion
to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing
authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
0120171034

9
Here we find no evidence of an unlawful motivation. As Complainant did not request a hearing,
we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing;
therefore, we can only evaluate the facts based on the weight of the evidence presented to us.

In an effort to show pretext, Complainant, among other things, argued that her length of service
was greater than that of C1 and C2. Although this is true, we have repeatedly held that mere years
of service, or length of service, does not necessarily make an individual more qualified to meet the
needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No.
0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248
(Oct. 5, 2004). Neither does years of service automatically make an individual more qualified.
Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19, 1991). The
Commission will not substitute our judgment for the judgment of selecting officials familiar with
the present and future needs of their facility and therefore in a better position to judge the respective
merits of each candidate, unless other facts suggest that proscribed considerations entered into the
decision-making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561
(Aug. 6. 1998).

Complainant, on appeal, presented data and a chart to support her assertions that Hispanics were
not promoted in the school district, and that younger poorly qualified white employees received
more favorable treatment than she did in the selection process for the Principal positions to which
she applied. However, her chart does not show that the comparators she identified were similarly
situated in that none of them applied for the positions at issue, or went through the same selection
processes as Complainant involving DS or the other panelists. The evidence also does not establish
the age, or prior EEO activity of the identified comparators; and the chart provided by Complainant
includes information unrelated to her situation.

In sum, we find that Complainant did not establish that the Agency engaged in unlawful
discrimination. At all times, the burden of persuasion lies with Complainant that it was unlawful
animus that motivated the Agency to engage in the prohibited conduct. Complainant has failed in
this regard.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance
of the evidence in the record does not establish that discrimination occurred.

0120171034

10
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.
0120171034

11
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

November 30, 2018
Date