Betty P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120171701 (E.E.O.C. Dec. 7, 2018)

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

Betty P.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120171701

Agency No. ARMYER14MAR011197

DECISION

On April 5, 2017, 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
February 28, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Deputy Resource
Management Officer, GS-0501-14 at the Joint Forces Headquarters National Capital Region,
Military District of Washington in the District of Columbia.

On July 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of color (non-white), sex (female), national origin (Asian) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1) she was not
selected for the position of Resource Management Officer – GS-0501-15, Job Announcement
#NCAS148136941025063.

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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Thereafter, on January 15, 2015, Complainant amended her original complaint to include an
additional claim that she was discriminated against on the bases of race (Asian), sex (female),
national origin (Philippines), and reprisal, when she was not selected for the position of Resource
Management Officer, GS-0501-15, Job Announcement #NCAS14335958123842. 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, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

On February 28, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency explained that Complainant was not selected for either vacancy because her
qualifications fell short of her competitors, namely her lack of executive leadership experience at
key components such as the Pentagon (HQDA), Army Command (ACOM), and Army Service
Component Command (ASCC). The Agency averred that the selectee in claim (1) exceeded the
qualification criteria established by the command and ultimately joined the Senior Executive
Service in less than a year. For claim (2), the Agency explained that the selection panel picked the
candidate with the second-best qualifications because the initial selectee turned down the offer.
The Agency noted that the selectee had supervisory financial analyst experience at the HQDA.
The Agency found no evidence that the selections were motivated by prohibited discriminatory
considerations or were in reprisal for Complainant’s prior participation in the EEO complaint
process. Consequently, the Agency 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”).

On appeal, Complainant asserts that the Agency excluded relevant documents and rendered a final
decision based on an incomplete report of investigation. After careful consideration of the record,
we find no evidence to support Complainant’s allegations. We note that the documents cited in her
appeal are already contained in the original investigative record (e.g., documents concerning
management’s violation of the Anti-Deficiency Act, affidavits from management officials, and
Complainant’s rebuttal statements). We find that the investigation was adequate and we find no
deficiencies in the investigation.

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly
to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

Assuming Complainant established a prima facie case on all alleged bases, we find that
Complainant has failed to show that the nonselections were motivated by discrimination. The
record reflects that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
We further note regarding claim (1), the members of the selection panel averred that the selectee
received the highest score out of 29 candidates.

While we acknowledge that Complainant was qualified for the position of Resource Management
Officer, she has not established that her qualifications were plainly superior to those of the
selectees. In so finding, we note that a key requirement for the position was executive leadership
experience, which the members of the selection panels defined as experience at higher level
headquarters such as the Pentagon (HQDA), Army Command (ACOM), and Army Service
Component Command (ASCC). The record reflects that Complainant had experience at a major
command, but not at higher level headquarters. The selectees in claims (1) and (2), however, had
the requisite experience and were the unanimous choices for both selection panels.

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. See Burdine, supra; Vanek v. Dep't of the Treasury, EEOC Request No.
05940906 (January 16, 1997). Based on the totality of the record, we find that Complainant has
failed to fulfill her burden of showing that the Agency’s articulated reasons were pretext for
discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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 7, 2018
Date