Complainant,v.Jeanne A. Hulit, Acting Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jul 10, 2014

0120131153 (E.E.O.C. Jul. 10, 2014)

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

Complainant,

v.

Jeanne A. Hulit,
Acting Administrator,
Small Business Administration,
Agency.

Appeal No. 0120131153

Agency No. 12-12-014

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated January 2,
2013, finding no discrimination with regard to her complaint. For the following reasons, we
AFFIRM the Agency’s final decision finding of no discrimination.

BACKGROUND
In her complaint, Complainant alleged discrimination based on race (African American), color
(black), sex (female), disability, and in reprisal for prior EEO activity when on October 24,
2011, she learned she was not selected for the position of Deputy District Director,
Sacramento District Office, GS-340-13/14, Job Announcement Number 11D-292-VB. After
completion of the investigation of the complaint, Complainant did not request a hearing. The
Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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. (November 9, 1999) (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”).
0120131153

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After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The record indicates that at the time of the alleged
incident, Complainant was employed as a Business Development Specialist, GS-12, at the
Agency and subsequently retired on February 29, 2012.1

Complainant claimed that she should
have been selected for the Deputy District Director position, GS-13/14, on October 24, 2011,
because she was better qualified than the selectee for the position at issue due to her
background in contracting, loans, and economic development. Complainant indicated that she
was previously a Supervisory Contracts Specialist, GM-13, for the Navy (1987 – 1990); an
Agency’s Procurement Center Representative, GS-13, position at McClellan Air Force Base
(1990 – 1995); a Senior Eligibility Specialist, GS-13, in 1996; and a Loan Specialist, GS-12
(1996 – 2006) (retention adjustment GS-13). The record indicates that Complainant held her
Business Development Specialist, GS-12, position since 2006.
The Agency stated that its selection panel conducted interviews of all eligible applicants,
including Complainant, and ultimately selected the selectee for the position at issue because he
was the only one who articulated a vision and mission of the office and stated solutions to
increase the efficiency in the office and demonstrated greater depth of knowledge about the
Agency’s programs and services. The selection panel determined that Complainant’s interview
was more of a recitation of what she previously had done and she did not relate her prior
management experience to the duties and responsibilities of the position at issue. The Agency
indicated that at the time of the selection at issue: the selectee was already functioning as a GS-
13, Lead Lender Relations Specialist since 2003; worked with the District Director; and served
as Acting District Director while the District Director was on annual leave and attending to the
Annual Field Conferences.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated legitimate, nondiscriminatory reasons for the alleged nonselection were pretexual.
Furthermore, Complainant failed to show that her qualifications for the position at issue were
plainly superior to the selectee’s qualifications or that the Agency’s action was motivated by
discrimination. See Wasser v. Department of Labor

, EEOC Request No. 05940058
(November 2, 1995). It is noted that we do not address in this decision whether Complainant
is a qualified individual with a disability. Furthermore, we note that Complainant has not
claimed that she was denied a reasonable accommodation. Based on the foregoing, we find
that Complainant has failed to show that the Agency’s action was motivated by discrimination
as she alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

1 Complainant’s retirement is not a live issue in this case.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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).
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 10, 2014