Jackie C.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0120162489 (E.E.O.C. Aug. 9, 2018)

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

Jackie C.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120162489

Agency No. GSA-16-R2-P-0006

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the June 30, 2016 final agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist,
GS-1102-12, with the Agency’s Public Buildings Service, Office of the Regional Commissioner,
Acquisition Management Division in Brooklyn, New York. On August 21, 2015, the Agency
advertised vacancies at multiple locations for a Supervisory Contract Specialist position under
Vacancy Announcement No. 1502111ABMP. Complainant applied for the position, was found
qualified, and was included on the Merit Promotion Certificate. Complainant was interviewed
telephonically by a three-person interview panel. Following the interviews, the interview panel
referred its top three candidates to the selection panel for additional interviews and consideration.
The interview panel did not rate Complainant as one of the top three candidates, and she was not

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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referred for further consideration. On September 21, 2015, Complainant was informed that she
was not selected for the position.

On December 2, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female, sexual
orientation), color (Black), and age (55) when on September 21, 2015, she was not selected for
the position of Supervisory Contract Specialist, GS-1102-13, under Vacancy Announcement No.
1502111ABMP.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, one interview panelist (IP-1) stated that
Human Resources referred six candidates to the panel for interviews. IP-1 affirmed that the
panel asked all applicants the same standardized questions. IP-1 explained that the panel
analyzed the candidates based on the quality, completeness, and skills as demonstrated by the
answers given to the structured interview questions and how well each applicant’s answers
demonstrated a readiness for the vacant position. IP-1 stated that the panel did not recommend
Complainant for further consideration because her interview question responses did not provide
an impression of experiential or technical preparedness for the position. Further, IP-1 added that
the panel’s consensus opinion was that there were at least three other candidates whose answers
provided a stronger impression as to their readiness to take on the position. A second interview
panelist (IP-2) concurred and affirmed that Complainant did not effectively answer two out of six
questions and answered in a way that indicated she not only did not have the experience or skill
set required for the position, but that she did not even understand the two questions being asked.
By contrast, IP-2 stated that the candidates referred provided interview responses that were
sufficiently detailed to demonstrate experience and a good understanding of the position.

In attempting to establish that the Agency’s reasons for its actions were pretextual, Complainant
argued that the selectee was preselected; that panelists relied upon subjective criteria in assessing
her interview performance; and that a subjective judgment was deliberate since it allowed for the
biased selection of the young, Caucasian, heterosexual preferred candidate who could be deemed
“highly qualified” based purely on the interviewers’ preference. The Agency noted that
Complainant failed to rebut any of the interview panelists’ statements about her interview
performance. Furthermore, the Agency concluded that the interview panelists provided specific,
clear, and individualized explanations for Complainant’s non-referral and Complainant failed to
show that its reasons were motivated by discrimination. As a result, the Agency found that
Complainant had not been subjected to discrimination as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s selection process was deliberately subjective
and biased. Complainant argues that the Agency’s absence of a common rating scale allowed the
interviewers’ biased assessments to unfairly discriminate against her. Complainant alleges that
the Agency’s selection procedures resulted in a disparate impact on older candidates.
Complainant contends that she was more qualified than the selectee and that the selectee was
preselected. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

At the outset, the Commission notes that Complainant raised a claim of disparate impact for the
first time on appeal. Because Complainant did not raise a claim of disparate impact in her
complaint or during the investigation, the Commission declines to examine this theory of
discrimination herein. See Complainant v. Dep't of the Navy, EEOC Appeal No. 0120130985
(Aug. 22, 2014). Therefore, the Commission will restrict its review to whether the Agency
subjected Complainant to disparate treatment.

Disparate Treatment

To prevail in a disparate treatment claim such as this,2 Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for not referring Complainant for further consideration for the
position at issue. In particular, IP-1 stated that the Agency used a three-person interview panel
and then a selection panel to make selections for the position at issue. ROI, at 164. IP-1
affirmed that all referred candidates were asked the same questions and the interview panelists
referred the top three candidates to the selection panel for second interviews. Id. IP-1 asserted
that Complainant was not one of the top three candidates referred for further consideration
because her responses to the interview questions were not as concise and thorough as those of the

2 A claim of sexual orientation discrimination is a claim of sex discrimination under Title VII.
Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015).
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referred candidates. Id. at 167. For example, IP-1 stated that Complainant’s response to one of
the questions was disorganized, fragmented, and did not thoroughly explain her example
situation or conclude with an outcome to the situation. Id. at 176. Additionally, IP-1 explained
that Complainant failed to completely answer a question about how she facilitated open
communication or how she handled conflict. Id. at 176-77. Likewise, IP-1 affirmed that
Complainant failed to address a question about empowerment and instead discussed how she
replaced someone on a project. Id. at 177. By contrast, IP-1 stated that the top three candidates
explained their examples/experiences in a manner that was easy to follow. Id. IP-1 maintained
that the top three candidates responded thoroughly by explaining their example experiences in
detail, and then closed each response with the conclusion and outcome of the given situation. Id.
Further, IP-1 affirmed that the top three candidates provided multiple examples of experiences
from various sources and provided examples of times where they mentored and trained
colleagues. Id. Thus, IP-1 stated that the interview panel concluded that Complainant was not
one of three most qualified candidates for further consideration. Id. at 168.

IP-2 affirmed that the interview panel considered the quality, completeness, and skills the
candidates demonstrated during their structured interview and how well each applicant’s answers
demonstrated readiness for the position. ROI, at 194. IP-2 confirmed that the interviewed
applicants had been considered qualified for the position; therefore, all applicants were
considered on equal footing at the time of the initial interviews and the referral of certain
applicants for further consideration was based on the candidates’ interview performance. Id. at
195. IP-2 stated that Complainant’s interview responses did not demonstrate an impression of
experiential or technical preparedness for the position that was more favorable than some of the
other candidates. Id. at 204. IP-2 confirmed that the panel’s consensus opinion was that there
were at least three other candidates whose answers provided a stronger impression as to their
readiness for the position. Id. at 204-05. IP-2 explained that the candidates referred were judged
by the panelists as to have demonstrated the greatest degree of overall readiness to take on the
responsibilities of the offered position. Id. at 205. IP-2 stated that the referred candidates
provided detailed and informative answers supporting the conclusion that they were capable of
taking on additional duties, including those of a supervisor. Id. IP-2 affirmed that their answers
displayed a quickness of thought, as well as the ability to formulate and transmit a
comprehensive answer demonstrating their technical knowledge and skills that was superior to
that of the other candidates. Id.

Finally, the third interview panel member (IP-3) added that Complainant failed to effectively
answer two of the six questions. ROI, at 209. Conversely, IP-3 stated that the three individuals
who were forwarded to the second interview panel provided strong responses to the interview
questions. Id. IP-3 stressed that the responses of the referred candidates answered all the
questions effectively and provided good specific examples that clearly demonstrated skill sets
and experience that were required for the position, including some measure of team leadership or
other type of supervision/mentoring. Id.

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Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

In attempting to establish that the Agency’s reasons for her non-selection were pretextual,
Complainant argues that the interview panelists conspired to pre-select the eventual selectee by
using “excessively subjective and demonstrably biased evaluations.”

As Complainant chose not to request a hearing before an EEOC AJ, the Commission does not
have the benefit of an Administrative Judge’s credibility determinations after a hearing.
Therefore, the Commission can only evaluate the facts based on the weight of the evidence
presented. The Commission finds no persuasive evidence that Complainant’s protected classes
were a factor in any of the Agency’s actions. Regarding her claim that the selectee was
preselected, the Commission notes that even if preselection occurred, it would not be unlawful
unless Complainant can show that the preselection was driven by discriminatory animus. See
Nickens v. Nat'l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996).
Preselection, per se, does not establish discrimination when it is based on the qualifications of
the selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC
Request No. 05931038 (July 28, 1994). Furthermore, Complainant presented no evidence
rebutting the interview panelists’ explanation that the top three candidates referred for
consideration demonstrated during their interviews that they were the best qualified candidates.
In the absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency’s assessment of the candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine,
450 U.S. at 259.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on
the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
as alleged.

CONCUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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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.

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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

August 9, 2018
Date