0120162660
02-06-2018
Chasity H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chasity H.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162660
Hearing No. 520-2014-00402X
Agency No. ARUSMA13SEP03139
DECISION
On August 17, 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 July 21, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director at the Agency's West Point Cemetery facility in West Point, New York. Complainant applied for a promotion to the position of Cemetery Administrator. She was not selected for the position.
Complainant contacted the EEO Counselor alleging that the Agency's action was discriminatory. On October 21, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (54) when: she was not selected for the position of Cemetery Administrator under Vacancy Announcement NEBR13303018914199 and NEB13303018918339D.2
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). Complainant requested a hearing but the AJ denied the hearing request on the grounds that:
* Complainant failed to provide a reasonable explanation that would constitute good cause for not complying with the directives of the AJ's April 22nd Scheduling Order;
* Complainant failed to demonstrate good cause for failing to advise the Agency of her intent to appear as a witness at the June 6th hearing;
* Complainant failed to comply with the Commission's Acknowledgment Order that obligated her to provide current contact information;
* Complainant did not offer reasonable explanation as to why she failed to provide proposed witnesses who were pertinent to the case, and
* Complainant provided no reasonable explanation as to why she waited until the eve of trial to retain legal counsel.
The AJ remanded the complaint to the Agency, and 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.
Complainant appealed the Agency's final decision. Complainant argued that her application was intentionally obstructed and was inaccurately scored to be biased against her. She also claimed that her veteran's preference employment rights were violated by the selecting panel. Complainant argued that the cancellation of the hearing resulting in the scales of justice tipping in the Agency's favor. She argued that without a hearing, she was unable to bring forth supporting evidence to support her prima facie case. We note that Complainant did not specifically challenge the AJ's grounds for dismissing of the hearing. She challenges her rating scores and claimed that the Chief of Staff played a role in the decision. The Agency asked that the Commission affirm its decision.
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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 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, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for selecting the Selectee. Complainant asserted that the Chief of Staff sabotaged her application. However, he averred that he had no role in the selection decision. The Selecting Official (female, over 40), Panelist 1 (female, over 40) and Panelist 2 (male, over 40) were involved in the review of the applicants. The Selecting Official established the criteria for rating the resumes of the applicants to determine who would be interviewed. Each candidate was also scored by USA Staffing. Each candidate received a total score based on the 3 scores from the Selecting Official, Panelist 1 and Panelist 2 added to the score from USA Staffing. Based on the reviews, Complainant was ranked in the middle of the nine candidates considered for the position and received a total rating of 160 points. Of the top four candidates received scores of 173.3, 171.5, 169.5, and 161.5. The third ranked applicant withdrew his name and the three remaining were interviewed as the three top ranking candidates with ratings of 173.3, 171.5, and 161.5. The Selecting Official stated that the Selectee was chosen because he had by far the most and the type of experience the Agency was looking. Based on our review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action.
We now turn to Complainant to show that the Agency's reason was pretext for discrimination. In non-selection cases, 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). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).
In attempting to show pretext in a situation involving non-selections, Complainant must bear in mind that when hiring or promoting, agencies have broad discretion to choose among 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). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). The use of subjective selection criteria is not, in and of itself, evidence of discriminatory intent. See Complainant v. Social Security Admin., EEOC Appeal No. 0120132398 (Sept. 11, 2015) (use of subjective criteria in making a promotion does not in itself supply an inference of discrimination). Upon review of the record, we find that Complainant has not shown that the selection of the Selectee was pretext for discrimination based on sex and/or age.
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.
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.
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
February 6, 2018
__________________
Date
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.
2 The record indicated that there were two announcement numbers for a single position - one for internal candidates and another for external candidates.
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