Ebony M.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120140296 (E.E.O.C. Apr. 8, 2016)

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

Ebony M.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120140296

Hearing No. 451-2012-00186X

Agency No. IRS-11-0775-F

DECISION

Complainant filed an appeal from the Agency’s October 18, 2013, final order concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Bankruptcy
Specialist, GS-1101-11, in the Insolvency SB/SE Unit at the Agency’s work facility in Austin,
Texas.

On November 16, 2011, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the basis of her race (African-American) when she was
not selected for the position of Bankruptcy Specialist, GS-1101-12. 2
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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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 timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for
Summary Judgment and issued a decision without a hearing on September 30, 2013.

The AJ found that no race discrimination occurred. Complainant was among four candidates
telephonically interviewed for the position at issue. The other three candidates, including the
selectee, are Caucasian. The interview panel was composed of the selecting official, the
Acting Territory Manager, an African-American, and two Supervisory Bankruptcy Specialists,
one Caucasian and one African-American. The AJ noted that the selecting official stated that
she chose the selectee for the position because of the three candidates who were employed at
the time as grade eleven Bankruptcy Specialists, she believed that the selectee had the best
interview. According to the selecting official, the selectee did a better job than Complainant at
describing her specialized technical experience and skills. One of the other panelists rated the
selectee 27.5 and Complainant 25. This panelist explained that the selectee’s job application
was better written and better at incorporating her qualifications and experience. The panelist
stated that the selectee elaborated more about complex issues while Complainant’s responses
were short and sometimes incomplete. Another panelist asserted that the selectee spoke in
depth about her experience during the interview and Complainant in contrast provided brief
responses which sometimes did not adequately address the questions. This panelist stated that
Complainant did not provide sufficient detail to highlight her eighteen years of bankruptcy
experience.

The AJ observed that Complainant argued that she was more qualified than the selectee in part
because she had “adequate protection” experience in dealing with Chapter 11 Bankruptcies.
Complainant pointed to the fact that the selectee admitted she had never worked on a Chapter
11 Bankruptcy case, and that the panelists noted her lack of knowledge in this area. The AJ,
however, rejected this contention noting that the vacancy announcement contains no such
requirement about adequate protection experience.

The AJ stated that Complainant asserted that at the time of the vacancy announcement, she had
an excellent performance record and the selectee had been counseled for performance issues
less than two months prior to the vacancy announcement. The AJ, however, cited specific
evidence contradicting this assertion. The AJ noted that one of the panelists stated that the
selectee was not on a performance plan and that the selectee had been out of the office based
on several legitimate, work related reasons. This panelist explained that the selectee had
assisted the Director in preparing for a major project and attended meetings in South Texas.
According to the panelist, the selectee had also been away from the office due to use or lose
2 Complainant initially included the basis of color (black) in her formal complaint. However,
on December 5, 2011, Complainant requested that the basis of color be removed from the
complaint.

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leave, vacation time and surgery that kept her out of the office for almost three months. The
panelist stated that these were the reasons that some of the selectee’s work was reassigned and
that even if the selectee was behind in her work due to her absences, by the time of her
performance appraisal, the selectee had addressed and completed any work related issues. The
AJ found that Complainant failed to present sufficient evidence to show that the reasons
articulated by the Agency for her nonselection were pretext for discrimination.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant
argues that the AJ erred in issuing a decision without a hearing and reiterates her contention
that she was subjected to unlawful discrimination as she was the best qualified candidate for the
position at issue.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An 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.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo that
she established a prima facie case of race discrimination, Complainant failed to present evidence
to rebut the Agency's legitimate, nondiscriminatory reasons for its action. The record reflects
that the Agency stated that it chose the selectee rather than Complainant based on the selectee’s

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strong performance during her interview. The Selectee’s responses were characterized as being
better at explaining her specialized technical experience and skills. The selectee offered more
detail and examples of her abilities whereas Complainant’s responses were sometimes brief and
incomplete. We find that the Agency articulated legitimate, nondiscriminatory reasons for its
selection.

Complainant attempts to establish pretext by focusing on what she considers to be her superior
qualifications for the position. Complainant may be able to establish pretext with a showing
that her qualifications were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647. F.2d 1037,
1048 (10th Cir. 1981). Upon review of the record, we find that Complainant has not
established that her qualifications for the position at issue were clearly superior to those of the
selectee. The selecting official asserted that the selectee performed better during her interview
than the Complainant and that dictated the choice of the selectee. Additionally, one of the
panelists stated that the selectee’s application was better written and more successful at
incorporating her qualifications and experience. We find that Complainant has not presented
sufficient argument or evidence to establish that the Agency’s explanation for its selection was
pretext intended to hide discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments

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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.

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

April 8, 2016
Date