Ela O.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Feb 1, 2016

0120140657 (E.E.O.C. Feb. 1, 2016)

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

Ela O.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120140657

Agency No. OCFO-2010-00566

DECISION

On November 25, 2013, Complainant filed an appeal from the Agency’s September 10, 2013,
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 for the Agency as an
Administrative Payment Technician, GS-7, with the Office of the Chief Financial Officer
(OCF), National Finance Center (NFC), Controller Operations Division (COD).

The Agency posted a vacancy announcement for three open positions of Information
Technology (IT) Specialist, GS-2210-7/11, advertised under vacancy announcement number
NFC-10-019. The posting was open from November 23, 2009, through December 17, 2009.
Complainant applied for the position and was found qualified at both the grade 7 and grade 9
levels. Ten best qualified candidates, including Complainant were interviewed for the position
at the GS-7 level by Panel Member 1, Panel Member 2, and the Selecting Official. Three
persons were selected: Selectee 1, Selectee 2, and Selectee 3.

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 July 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to harassment on the bases of race (African-American) and color
(black) when:

On March 23, 2010, Complainant learned that she was not selected for the position of
Information Technology (IT) Specialist (Policy Planning), GS-2210-7/11, as advertised
under vacancy announcement number NFC-10-019.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

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”).

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters,
438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is her obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
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v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

In the present case, Complainant established a prima facie case of race and color
discrimination. At the time of the non-selection, Complainant was a member of a protected
class because of her race (African American) and her color (brown). Complainant was
qualified for the position, as evidenced by her identification on the best qualified list.
Moreover, Complainant was not selected for the position, and the position was offered to three
other applicants, two of whom were a different race and color than Complainant.

Complainant stated that the interview questions were inappropriate and did not apply to an
entry level position, but rather were questions for someone already performing the job.
Complainant stated she was more qualified than the selectees because she had an IT degree,
was well versed with IT terminology, was an “outstanding scholar” with a 3.4 GPA, and was
working with the government longer than any of the selectees. Complainant stated that her
oral skills were exceptional and therefore, she stated she performed exceptionally well on the
interview.

Complainant believed she was more qualified than the selectees. Complainant noted that
Selectee 1 did not graduate from high school, was a secretary, and was a personal friend
and/or relative of the former Associate Director of the Information Technology Services
Division. Complainant stated Selectee 2 was a secretary and a personal friend and/or relative
of the Selecting Official and was the personal secretary of the Director of the Information
Technology Services Division. Complainant noted that Selectee 3 was a personal friend and/or
relative of Panel Member 2.

The burden then shifts to the Agency to present a legitimate, nondiscriminatory reason for not
selecting Complainant. In this case, the Selecting Official (SO) explained that there were
openings in each of the panel members’ work areas and they each had input for their own work
area. The SO stated that the factors he used in assessing the candidates included their skill-set,
knowledge and experience to include extensive administrative skills, inventory control, ability
to work under stress, ability to be very detail-oriented, experience in the successful
performance of repetitious tasks, and overall knowledge of the Information Technology
Services Division (ITSD) and the Computer Resources Management Branch (CRMB).

The Chief, CRMB, was a panel member and the Selecting Official (SO). The SO stated
Complainant did not provide the best or most complete responses to the interview questions.
For example, the SO stated that he asked Complainant what experience she had performing
repetitious tasks based on the fact that the position required someone who had experience in
performing repetitious tasks daily. He noted that she responded that she presently did them;
but she never told him how she did them or how often. Also, the SO noted that Complainant
did not seem to handle the stress of the interview well.

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The SO stated Selectee 1 knew all about ITSD and CRMB. The SO stated that Selectee 1 did
research and was able to get information on the position despite the fact that she did not work
in that area. The SO noted that Selectee 1 had experience in repetitious tasks and stated that
although they could be boring they were essential and she was able to perform repetitious tasks
by keeping the flow going. The SO stated that Selectee 1 did extensive administrative work
which was required to successfully perform in the positions at issue and understood that
repetitious tasks were vital. He explained Selectee 1 also had great knowledge of lifecycle
management which was another factor in the selection. The SO stated Selectee 1 was
extremely detail-oriented which was essential for the position. The SO stated Complainant did
not have the extensive knowledge, experience, or skill-sets required that Selectee 1 did.

With regard to Selectee 2, the SO cited Selectee 2’s experience with repetitious tasks stating
that she was required to do them daily and during the interview she gave examples and
answered how she did them. The SO stated that Selectee 2 had extensive administrative skills,
was very detailed-oriented, was not afraid to speak, and had already been a great asset to
CRMB. The SO noted Selectee 2 also had experience in conducting audits which he stated was
invaluable in asset management. The SO noted that Selectee 2 believed in processes, knew her
limits, and was not afraid to ask questions. For example, the SO noted that Panel Member 3
asked a complex question/high level situational question in his area. The SO noted that
Selectee 2 replied that she did not know what to do in that situation and would simply ask him,
Panel Member 3, for direction which the SO explained was the right answer. Additionally, the
SO stated that Selectee 2 spoke very well. The SO stated that Complainant was knowledgeable
and answered the questions well in most part, but Selectee 2 had better skills, more
knowledge, and better responses that Complainant.

With regard to Selectee 3, the SO stated that Selectee 3 already worked in IT Acquisitions and
was performing similar duties. The SO stated that Selectee 3 knew everything that had to be
done, such as the processes and the computer systems. Further, the SO noted that Selectee 3
was asked about repetitious tasks and used her experience as a teacher and her current position
to give examples and also described how she performed them. The SO stated that when
compared to Selectee 3, the SO found that Complainant lacked the specialized skills or
knowledge possessed by Selectee 3, who already successfully performed many of the duties
required for the position.

Panel Member 2 was an IT Specialist, GS-13, in IT Acquisitions. Panel Member 2 stated that
his area of expertise was acquisitions, and he recommended a candidate for that vacancy only.
Panel Member 2 said that as the Acquisitions Coordinator for NFC, his role was to fill a
position within the Acquisitions Group. Panel Member 2 drafted and asked questions
specifically related to Acquisitions. Panel Member 2 explained that the factors he used were
based on the candidates' level of knowledge in Acquisitions Assets Management and IT in
general. He stated the questions asked were used to determine the experience and knowledge
each candidate possessed.

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Panel Member 2 stated that he recommended Selectee 3 for selection in the area of IT
Acquisitions. He noted she was already doing the work that was required for the position and
was a part of the Acquisitions Group. Panel Member 2 said the selection would be more of a
promotion than a new position. He noted she had a Master's degree and completed a long list
of IT courses. Further, Panel Member 2 stated that because she was already working in the IT
Acquisitions Group, she had more in-depth knowledge of the area and the work required. In
addition, Panel Member 2 stated Selectee 3 would require less of a training curve because she
was already knowledgeable and had the experience in the systems in place.

Panel Member 2 stated that in comparison, Selectee 3 and Complainant were ranked pretty
close. Specifically, he stated that Complainant had limited knowledge of the area and the work
required for the Acquisitions Group and also in life-cycle management. Panel Member 3
stated Complainant did not research the area to attain a broad understanding of the Acquisitions
Group before the interview. Panel Member 2 noted Complainant did not have the hands-on
experience that Selectee 3 possessed and who was already doing an excellent job in IT
Acquisitions. Panel Member 2 noted that like Selectee 3, Complainant also had excellent
communication skills.

Panel Member 3 was an IT Specialist, GS- 13, in Information Technology Asset Management
(ITAM). Panel Member 3 confirmed that he was looking for someone for the ITAM team.
Panel Member 3 stated that each of the panel members asked questions pertaining to their
areas. He stated that his questions were tough. Panel Member 3 stated the factors considered
for the position included the candidates’ knowledge in communication; warranties and
maintenance of equipment; process of developing and maintain an inventory; and procurement
and IT costing.

Panel Member 3 noted that Selectee 3 was his top rated candidate, but she was more suitable
for Panel Member 2's area and she was chosen for Panel Member 2's area. Panel Member 3
noted Selectee 3 had a Master’s Degree, tremendous job experience, a superb work ethic, and
hands on experience. He noted Selectee 3 was very specific in her interview responses, was
very opinionated, and had gained asset management experience while she was a teacher.

Panel Member 2 noted Selectee 1 had superb work experience, was very tenacious (a key
requirement for their function), and was certified as a Contract Officer Technical
Representative (COTR). Panel Member 2 stated that Selectee 1 managed to get certified as
COTR, which was not an easy certification, while in her secretary position. He stated Selectee
1’s oral interview was excellent. Panel Member 2 stated that Selectee 1’s only “minus” was in
education. However, he stated her skills and experience were fantastic.

With regard to Selectee 2, Panel Member 2 noted her application was probably the best of all
candidates. Panel Member 2 stated he was impressed with Selectee 2’s adaptability during the
Hurricane Katrina disaster. He noted that Selectee 2 had extensive experience and stated her
job related skills were very good. Further, he noted Selectee 2’s written KSAs were very
good, especially in the area of communication.
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Panel Member 3 stated Complainant showed a lot of hustle by pursuing her education and
making the decision to go back to school and get her degree, which was a big plus. Panel
Member 3 stated Complainant’s skill-set included an impressive list of technical courses.
Panel Member 3 noted Complainant’s first response during the interview was good, but not as
good as he would have wanted. Panel Member 3 stated Complainant did not have enough
hands-on experience. He noted Complainant’s writing was a little difficult to read. Panel
Member 3 stated Complainant’s knowledge of Microsoft applications and use of Access was
very good, she was well-versed in written communication, she was very process-oriented, and
a strong candidate. Panel Member 3 explained Complainant scored in the top five candidates.

The record contains statements from Complainant’s two witnesses who both applied and
interviewed for the position and were not selected. Witness 1 stated that she and Complainant
were concerned the selection process was biased and both felt intimidated by the interview
panel. Witness 1 stated that the interview felt more like an interrogation than an interview,
plus she stated the questions were not related to entry level positions. Witness 1 stated that the
two White panel members (Panel Member 1 and Panel Member 3) dominated the interview.
Witness 1 stated that Panel Member 1 and Panel Member 3 were the ones asking higher level
interview questions. Witness 1 stated that the Black panel member (Panel Member 2) waited
his turn to ask questions and then did not continue to ask questions. Witness 1 stated that
Panel Member 2’s questions were more in line with an entry level position. Witness 1 did not
sign her statement. Witness 2 stated the selectees were basically secretaries without an IT
education that had Acquisitions experience. Witness 2 felt the questions were geared towards
the selectees.

Witness 2 also stated that she believed Complainant was treated less favorably than others
similarly situated. Witness 2 noted the vacancy announcement was for an IT Specialist
position; however, the actual questions were based on specific work areas (for example,
Acquisitions). Witness 2 felt that you had to be already working in the area or in Acquisitions
to answer the question.

Upon review, we find Complainant failed to prove by a preponderance of evidence that the
Agency’s actions were a pretext for discrimination. We note Complainant provided no
evidence, other than the conclusory statements provided by her and her two witnesses that she
was subjected to discrimination based on race or color. Witness 1’s statement failed to
establish the alleged intimidation during the interview was race-based. We also found that the
record did not establish that the interview questions were designed to eliminate African
American candidates and in fact we note that one of the Selectees was African American. We
also find no evidence that Panel Member 1 or Panel Member 3’s alleged domination of the
interview constituted evidence of discrimination. With regard to the claim of pre-selection, we
note that pre-selection itself does not constitute prohibited discrimination. Additionally, with
regard to her claim that she should have been selected because she had worked at the Agency
longer than any of the other candidates years, we note that just by virtue of having more years
of service did not make Complainant a better qualified candidate. Based on a review of the
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record, we find Complainant failed to show that her qualifications were plainly superior to the
three individuals that were selected for the position. Finally, we find Complainant failed to
establish that she was subjected to harassment based on her race or color.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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
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”
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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 1, 2016
Date