0120162534
03-06-2018
Emma B.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emma B.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120162534
Agency No. DD-FY13-007
DECISION
On July 27, 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 June 16, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal at Lanham Elementary School in Ayase City, Japan under the Japan District/Department of Defense Dependent Schools (DODDS) - Pacific. On December 21, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (62) when, in October 2012, it failed to select her for the position of Principal at its Maxwell Air Force Base (AFB) Elementary and Middle School.
Subsequently, Complainant joined a request for class certification for African-American and non-African-American Agency employees who have been subjected to systemic discrimination based on race in policies, practices, and procedures in selection, promotion, or advancement; disparate pay; harassment; and retaliation in the workplace. An EEOC Administrative Judge (AJ) denied class certification, and the Agency issued a final decision implementing the denial and stating that individual complaints would be reinstated from the point processing ceased. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120141233. Following denial of class certification, the Agency investigated Complainant's individual complaint.
Investigation
Complainant
During the EEO investigation, Complainant stated that she has served as an Agency Assistant Principal since 1998, and has watched the Agency promote others who are less qualified. Complainant stated that some of the Agency's selectees for promotion have been dismissed from their position or served in the position for less than a year. Complainant alleged that the Agency passed over her for promotion to a Principal position numerous times since 2007, despite her senior status and high performance as an Assistant Principal. Complainant stated that the Agency interviewed her for the Maxwell Principal in about July 2012. Complainant stated that the Agency placed the Selectee (C1) (African-American, male, over 40) in the Principal position with "the plan of flushing [him] as soon as they thought they could get away with it." Complainant stated that C1 is no longer in the Maxwell Principal position and the Agency demoted him.
Agency Response
The Acting Superintendent for Domestic Dependent Elementary and Secondary Schools (DDESS)/Georgia-Alabama District (S1) (Caucasian, female, 69) was the selecting official for the position. S1 stated that the Agency uses the Educator Career Program to gather a list of qualified applicants to fill a Principal or Assistant Principal vacancy, and Human Resources (HR) manages the program. S1 stated that HR forwarded 34 candidates (internal and external) to her for consideration. She stated that the Georgia-Alabama District Education Operations Manager (S2) and the Maxwell AFB Commander (S3) were on the selection panel with her. S1 stated that the panel sought someone with experience as an administrator in elementary school and middle school and within DDESS.
S1 stated that the panel interviewed four candidates2 via telephone, but Complainant was not interviewed. She explained that Complainant did not have experience as a middle school administrator or as a DDESS administrator so the panel did not interview her. S1 stated that Maxwell was a new school and needed an experienced administrator to lead it as accreditation review approached in five months. S1 noted that the first principal assigned to Maxwell (a Caucasian female) was removed after one month in the position. S1 stated that domestic schools (under DDESS) operate very different from overseas schools (under DODDS) so the panel sought DDESS experience to make the transition smoother. S1 stated that the panel members scored each candidate independently and then placed results on a chart, which the panel reviewed and agreed on the candidate with the highest score for all of them. S1 stated that the selectee, C1, had elementary school and middle school administrator experience and DDESS experience. In response to Complainant's allegation that the Agency sought to "flush" C1 after hiring him, S1 stated that the Agency hired a new District Superintendent3 and she chose a new principal for the Maxwell School. S1 noted that the new principal is also an African-American male.
A second panel member, S2 (Caucasian, male, 62), stated that he and S1 determined whose experience merited an interview. S2 stated that the panel sought a candidate familiar with elementary administration, middle school administration, and the DDESS teacher-union contract known as the Master Labor Agreement. S2 stated that Maxwell had recently added middle school grades so the knowledge of both elementary and middle school administration was important. S2 also stated that Maxwell is about two hours from the Superintendent's office and it does not have an Assistant Principal position, so the Principal had to generally handle issues without immediate support. S2 stated that Maxwell AFB usually houses high-ranking officers who are there for one to three years so they typically leave their families behind due to the short period of assignment there. S2 stated that the Maxwell incumbent would have the difficult task of convincing parents that the Maxwell School is a qualitative program worth placing children in even if for a short time. S2 stated that three internal candidates and one external candidate with veteran's preference most closely met the requirements. S2 stated that Agency headquarters developed a bank of questions that are used for interviews. S2 stated that the panel members scored candidates independently and then placed the scores on a spreadsheet to determine the highest-rated candidate. S2 also stated that the selectee is a veteran, which could prove helpful in working with military parents.
The third panel member, S3 (African-American, male, 45), stated that the panel members discussed how the candidates responded to questions and potential strengths and weaknesses, but they scored candidates independently. S3 stated that he did not participate in determining who received an interview. S3 stated that the selectee, C1, was his number one choice of the candidates interviewed. He stated that, ultimately, C1 proved to be an "ineffective school principal" and was demoted without regard to race. S3 stated that, as Maxwell AFB Commander, he received complaints from a wide cross section of parents about C1's inability to lead.
Post-Investigation
On March 30, 2015, in EEOC Appeal No. 0120141233, the Commission affirmed the Agency's denial of class certification and remanded Complainant's individual complaint for processing from the point it was held in abeyance. In a letter dated April 23, 2015, Complainant asked an EEOC AJ to continue administrative processing of her individual complaint. On April 5, 2016, Complainant withdrew her hearing request, and requested an immediate final agency decision. In a final decision, dated June 16, 2016, the Agency found no discrimination based on race, sex, or age in Complainant's non-selection for the Maxwell Principal positon.
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").
Non-selection
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, 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. 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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, non-discriminatory 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).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, sex, or age, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the Maxwell AFB Principal position. We find further that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Both Complainant and the selectee were found to hold at least the minimum qualifications for the position at issue. The Agency stated that two members of a three-member selection panel reviewed the internal and external referral lists for the position and selected four candidates to interview telephonically. (The four candidates interviewed are all African-American - two males and two females.) The selecting official, S1, stated that Complainant was not chosen for an interview because she did not have experience as an administrator for middle school or within DDESS. S1 stated that Maxwell was a new school and needed an experienced administrator to lead it, especially as its accreditation review was imminent. She explained that the first principal, who is a Caucasian female, lasted only a month in the position. S1 stated that the selectee, C1, had elementary school and middle school administrator experience and DDESS experience. The Agency acknowledged that, ultimately, it removed C1 from the position based on complaints about his leadership by school parents. The Agency also stated that it selected a new District Superintendent who selected a new Principal for the Maxwell AFB Elementary and Middle School. The Agency stated that the person who replaced C1 is also an African-American male.
We find that Complainant has not shown that her qualifications were so superior to those of the selectee as to compel a finding of discrimination. And, the Commission's regulations do not prohibit an agency from selecting the candidate of its choice from among a group of eligible candidates who are deemed qualified for the position. Beckett v. Dep't of the Navy, EEOC Request No. 05880086 (July 25, 1988). Based on the above, after a careful review of the record, we affirm the final agency decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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
March 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 S1 stated that the four candidates interviewed included two African-American males and two African-American females.
3 The record reveals that the new District Superintendent began December 3, 2012.
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