Heidi B.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 25, 2016

0120140501 (E.E.O.C. May. 25, 2016)

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

Heidi B.,1
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120140501

Hearing No. 420-2013-00186X

Agency No. 8VOJ12006

DECISION

Complainant filed an appeal from the Agency’s final order dated October 29, 2013, finding no
discrimination with regard to her complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 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 order finding
no discrimination.

BACKGROUND

In her complaint, dated October 29, 2013, Complainant alleged discrimination based on age
(over 40) and disability (physical-stenosis of the spine, breast cancer, and knee replacement)
when on June 27, 2012, she was not selected for the Human Resources (HR) Officer position,
GS-0201-11. Upon completion of the investigation of the complaint, Complainant requested a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On
September 26, 2013, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision.

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

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. 29 C.F.R. § 1614.109(g). 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). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant
was employed as an HR Specialist, NF-0201-04, Non-Appropriate Fund (NAF) HR Office,
Keesler AFB, Mississippi. The record indicates that in June 2012, Complainant applied for the
Human Resources (HR) Officer position, GS-0201-11, at issue but she was not selected.

The Selecting Official (SO) indicated that she initially received the resumes of qualified
candidates from the Air Force Personnel Center. The SO stated that she looked for human
resources/personnel experience, leadership potential, and education background. After a
review of the resumes, the SO indicated that she picked the top three candidates, including
Complainant, all of whom she had worked with in the past. Then, stated the SO, she sought
those candidates’ supervisors’ recommendations. Based on the foregoing, the SO indicated
that she selected the selectee who was the best qualified candidate because the selectee had:
work experience with civilian personnel, NAF, and military; extensive training in personnel; a
Master’s Degree in Business Administration; and numerous accolades from her customer
service skills. The SO also indicated that while the SO was working with the selectee
previously, she was impressed with the selectee’s leadership and management skills.

The SO stated that Complainant was not the best candidate for the position at issue because
although she had 19 years of work experience and had an Associate degree in Business
Administration, she lacked civilian personnel experience and had poor managerial skills and
interpersonal relationships with the staff/managers. The SO indicated that the SO previously
received complaints against Complainant from staff concerning her integrity, retaliation, and

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favoritism while during her tenures as Acting HR Officer. Complainant’s supervisor at the
relevant time period indicated that Complainant lacked people skills and did not interact with
her coworkers/managers.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for not selecting her for the position. It is noted that we do not
address in this decision whether Complainant is a qualified individual with a disability.
Furthermore, we note that Complainant has not claimed that she was denied a reasonable
accommodation. Furthermore, Complainant failed to show that her qualifications for the
position were plainly superior to the selectee’s qualifications or that the Agency’s actions were
motivated by discrimination. See Wasser v. Department of Labor, EEOC Request No.
05940058 (November 2, 1995).

CONCLUSION

Accordingly, the Agency’s final order 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
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

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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

May 25, 2016
Date