Emma B.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Dec 2, 2016

0120142496 (E.E.O.C. Dec. 2, 2016)

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

Emma B.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120142496

Hearing No. 461-2014-00002X

Agency No. OCFO-2013-00320

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated June 12, 2014,
finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND

In her complaint, filed on March 13, 2013, Complainant alleged discrimination based on sex
(female) and age (over 40) when on December 2, 2012, she learned that she was not selected
for the position of Program Analyst, GS-0343-07/11, advertised under Vacancy Announcement
NFC (National Finance Center)-12-198-GVM. After completion of the investigation of the
complaint, Complainant requested a hearing but later withdrew the request. The Agency thus
issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut.

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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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 (EEO MD-110), Chap. 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").

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. At the relevant time period at issue, Complainant
(female, 59 years old) was employed as a Financial Management Assistant (FMA), GS-0503-
07, at the Agency’s Personnel Processing Branch, Government Employee Services Division,
National Finance Center, New Orleans, Louisiana. Complainant applied and was not selected
for the Program Analyst (PA), GS-0343-07/11, position advertised under Vacancy
Announcement NFC-12-198-GVM. As a PA, the candidate was expected to: develop
requirements for implementing training for NFC’s automated systems; resolve user problems;
provide users with information on the NFC’s telecommunications services; and draft internal
and external operating procedures and instructions.

The Agency indicated that its Human Resources (HR) Office created certificates of 45 eligible
candidates for the position at issue and provided the certificates to three Selecting Officials
(SOs). Complainant was one of the eligible candidates for the GS-07 level position.2 The SOs
indicated that they reviewed the resumes, interviewed candidates by asking the same questions,
scored the resumes and interview responses using a matrix, and created a final list of ranked
candidates based on the matrix scores. One of the SOs acknowledged that during the selection
process, he learned that his sister was on the certification list and he recused himself from
reviewing her resume or interviewing her or having any involvement concerning the selection
process for her or any discussion about her with other SOs.

The SOs indicated that based on candidates’ payroll knowledge and processing, research and
analysis experience, and customer service experience, selectees A (male, 28 years old, also an
FMA) and B (female, the SO’s sister, 48 years old, an Accounting Technician) received the
same total application scores of 23, whereas Complainant received a score of 15. For the
interview, selectees A and B received scores of 19 and 21, respectively, whereas Complainant

2 The Agency noted that for the announcement at issue, there were five vacancies and they
selected two candidates at the GS-07 level and three candidates at the GS-09 level (none at the
GS-11 level).
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received a score of 13. Selectees A and B’s combined scores were 42 and 44, respectively,
whereas Complainant’s combined score was 28. The SOs selected selectees A and B, the
candidates with the two top scores, for the GS-07 level and their selection was ultimately
approved by the NFC Contact Center Branch Chief and the Associate Director of NFC Payroll
Personnel Operations. Complainant was not selected due to her low combined score.

Complainant claimed that she was better qualified than selectee A. The SOs acknowledged
Complainant was highly qualified for the position at issue, but nevertheless indicated that
selectee A’s application scored higher than Complainant and he interviewed better than
Complainant. Specifically, the SOs indicated that selectee A received the highest score of 5s
for four position related ability areas, i.e., payroll knowledge/processing, research and analysis
experience, customer service experience, and communications, and the score of 3 for
teamwork/attentions to detail, resulting in his total application matrix score of 23; and that
Complainant received the score of 3s for all five areas, described above, resulting in her total
application matrix score of 15. With regard to the interview, the SOs stated that selectee A
answered the interview questions more concisely, on point, and complete than those answers
provided by Complainant. The SOs indicated that selectee A gave much better answers by
explaining how he organized and delegated work for scanning over 1,000 flat files.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that her qualifications for the position were plainly superior to the selectees’
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). Based on the foregoing, we find that Complainant 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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
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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. The requests 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 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
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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

December 2, 2016
Date