Denisse Y.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 27, 2019

2019001084 (E.E.O.C. Mar. 27, 2019)

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

Denisse Y.,1
Complainant,

v.

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

Appeal No. 2019001084

Hearing No. 480-2016-00326X

Agency No. ARSHAFTER15JAN00082

DECISION

On October 2, 2018, 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
August 15, 2018 final order concerning an 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.

BACKGROUND

During the period at issue, Complainant was an applicant for the Supervisory Medical
Technologist position (Vacancy Announcement Number NCMD142154571246027D), at the
Agency’s Medical Command in Wahiawa, Hawaii.

On March 12, 2015, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against her in reprisal for prior protected EEO activity when, on December
1, 2014, she became aware she was not selected for the Supervisory Medical Technologist
position (Vacancy Announcement Number NCMD142154571246027D).

The Agency accepted the complaint and conducted an investigation. The investigative record
reflects the following pertinent evidence relating to the subject claim.

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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On October 27, 2014, Vacancy Announcement Number NCMD142154571246027D was posted
on USAJobs.gov for one vacancy as a Supervisory Medical Technologist, GS-0644-12 at the
Schofield Barracks, Wahiawa, Hawaii. The vacancy was to remain open through October 31,
2014.

The vacancy announcement created two lists, a Merit Promotion (vacancy announcement
number WTEW142154571233424), and the Delegated Examining Unit (vacancy announcement
number NCMD 1421545711246027D). This resulted in two referral lists.

On October 30, 2014, the Certificate of Eligibles (Certificate) was issued for the Merit
Promotion vacancy. The Certificate identified four qualified candidates, but Complainant was
not listed. The Certificate specified candidates were ordered based on Competitive Merit
Promotion, and veterans’ points were not used in the ranking process.

On November 5, 2014, however, another Certificate was issued, for the same position, for the
Delegated Examining Unit. This Certificate identified six qualified candidates which now
included Complainant. The Certificate specified candidates were ordered based on Category
Rating, and veterans’ points were not used in the ranking process.

On November 24, 2014, Complainant was interviewed for the position in question. Complainant
recognized two of the four panelists. Complainant asserted that one of the panelists gave the
impression that she had no experience dealing with diverse and/or large populations.
Complainant felt she had to counter the negative impression.

On December 1, 2014, Complainant received an e-mail notifying her that the position had been
filled.

On December 28, 2014, a Notification of Personnel Action was issued identifying another
candidate as the selectee (hereinafter referred to as “the Selectee”) for the Vacancy
Announcement Number NCMD142154571246027D.

During the investigation, Complainant stated that she was not aware that any of the identified
management officials involved in the selection process were aware of her prior EEO activity at
the time of selections.

The Selecting Official stated she was not aware of Complainant’s EEO activity prior to the
notification of the instant complaint in June 2015. The Selecting Official stated she chose the
Selectee because he was deemed better suited for the position. Specifically, the Selectee
performed well in the interview, established that he had the technical expertise, likelihood for
longevity (in the position), familiarity with core operations, contracting requirements, supply
chain systems, and instrument procurement processes. The Selecting Official stated that
longevity and recent lab bench experience were the two most important factors when it came to
selection.
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The Selecting Official stated that the interview panel came to a unanimous decision on the
Selectee because he was the most qualified candidate. In contrast, Complainant, while qualified,
had less experience, and seemingly only considered the position as a short-term position.

Another panelist (hereinafter referred to as “P1”) stated that he was not aware of Complainant’s
of prior EEO activity prior to the instant complaint. P1 stated that Complainant was
knowledgeable in some areas, but felt she seemed more focused on teaching, while the position
at issue was more of administrative one. He also felt that some of her responses indicated that the
position was not long term for her, but instead a “stepping stone” for her next position.
Consequently, he felt she did not have the passion for the position needed to accommodate the
longevity management was looking for in a candidate. In contrast, P1 noted that the Selectee was
a GS-13 at the time of the interview but was willing to step down to the GS-12 for the position.
P1 stated that even if he was aware of any prior EEO activity, it would not have swayed his
opinion.

After an 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 timely requested a hearing.
The AJ assigned to the case granted the Agency’s March 15, 2018, motion for a decision without
a hearing, and issued a decision by summary judgment in favor of the Agency on August 2,
2018.

Based on the evidence developed during the investigation, the AJ concluded that Complainant
did not prove, by a preponderance of the evidence, that she was subjected to discrimination in
reprisal for her prior EEO activity. The AJ determined that the record did not confirm
Complainant as the demonstrably superior candidate. The AJ noted that even Complainant
seemingly acknowledged that she and the selectee were similarly qualified. Ultimately, the AJ
concluded that after making all reasonable inferences in favor of the Complainant, there was
nothing to demonstrate that the Agency’s provided legitimate, non-discriminatory reasons were
pretext for discrimination.

On August 15, 2018, the Agency issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. Complainant does not raise any new contentions on appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The
U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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In ruling on a motion for summary judgment a court does not sit as a fact finder. Id. The
evidence of the nonmoving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the nonmoving party's favor. Id. A disputed 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. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination that the record has been
adequately developed for summary disposition.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Here,
Complainant has failed, either at the hearing stage or on appeal, to point to any particular
evidence in the investigative file or other evidence of record that indicates such a dispute.
Therefore, we find no error in the AJ’s decision to adjudicate this case without a hearing.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The Commission cannot second-guess an Agency's personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for making those
decisions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
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Therefore, in order to prevail on her disparate treatment claim, Complainant would have to
prove, by a preponderance of the evidence, that the panelists were motivated by unlawful reprisal
when they did not select her. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000).

Complainant can prove the existence of a discriminatory motivation by presenting evidence
tending to show that the reasons articulated by the Agency for not selecting her were pretext, i.e.,
not the real reason but rather a cover for discrimination. St. Mary's Honor Society v. Hicks, 509
U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses,
implausibilities, 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. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (November 20,
2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

In non-selection cases such as the one now before us, 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 Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).

Complainant should bear in mind, however, that agencies have broad discretion to choose among
equally 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 select candidates with fewer years of experience if they believe that
such candidates are best qualified to meet the needs of the organization. Complainant v. Dept. of
Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as
long as the preselection is not premised upon a prohibited basis. Complainant v. Dept. of
Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

Here, as detailed by the record and in the AJ’s well-reasoned decision, the record supports the
AJ’s determination that the Agency’s proffered reasons regarding the non-selection are
legitimate and non-discriminatory. For example, the panelists sought a candidate who had
demonstrated recent laboratory experience in technical, logistical, and managerial aspects of a
laboratory. The Selectee’s resume and interview demonstrated that he had such skills and
experience. In contrast, Complainant’s experience, while impressive, was not as well of a fit with
the position’s as the Selectee’s experience. Additionally, the panelists specifically desired a
candidate who considered staying in the position long-term. The Selecting Official noted that
Complainant’s responses during the interview left the panelists feeling as if Complainant was not
necessarily committed to the idea of staying in the position long-term.
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Furthermore, P1 noted that the Selectee impressed the panelists with his commitment to the
position by his willingness to step down from a GS-13 position and into a GS-12 position.
Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s non-
selection were pretext for discrimination or unlawful retaliation.

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s final decision finding no discrimination.

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.
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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
Carlton M. Hadden, Director
Office of Federal Operations

March 27, 2019
Date