Lenita T.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120170896 (E.E.O.C. Nov. 14, 2018)

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

Lenita T.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120170896

Agency No. DLAC150297

DECISION

On December 18, 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
November 17, 2016, final decision concerning her equal employment opportunity (EEO)
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, the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that she was subjected to disparate treatment on the bases of age
and disability when on April 3, 2015, she was not selected for the position of Procurement Analyst,
GS-1102-09/11, advertised under job opportunity announcement (JOA) DLALndMartm-15-
1345479-MP.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Records Manager,
GS-0343-09 at the Agency’s Defense Logistics Agency (DLA), Army Corp of Engineers facility
in Warren, Michigan. On November 14, 2015, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of age (57) and disability (mental) under the
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., when On April 3, 2015, she was not selected for the position of Procurement
Analyst, GS-1102-09/11, advertised under job opportunity announcement (JOA)
DLALndMartm-15-1345479-MP.

The Agency explained that Complainant could not demonstrate that her applicable skills were
plainly superior to the selectee for the position to which she applied; and that neither
Complainant’s disability nor her age was a determining factor. Complainant stated that in response
to a vacancy announcement, she applied for the position of Procurement Analyst, GS-1102-09/11,
with DLA Land Maritime, located in Warren, Michigan. She stated that she was referred and
interviewed but later notified she was not selected for the GS-9 position. Complainant stated that
she believes she was not selected based on her age. She stated that she deduced the selectee was
much younger than she. The record indicates that the selectee, C1, was 27.

The interview panel members (panelists) stated that they interviewed 12 candidates, including
Complainant. As with the other candidates, the panelists stated that they rated Complainant based
on her responses, and did not give any additional consideration to the fact she had been a GS-14.
They also stated that they were unaware of Complainant’s age, and unaware of the age of the other
candidates.

The Agency stated that at the end of the selection process, Complainant was not the most qualified
candidate; therefore, she was not selected for the position. The Selecting Official (SO) stated that
the panelists categorized applicants into three categories: top, middle, and bottom. After
completion of the interviews, Complainant was ranked sixth out of twelve candidates, placing her
in the middle category. C1 was rated highest after the interviews, and was selected for the GS-9
position.

Complainant also stated that she believes she was not selected for the position based on her
psychiatric disability, which she has had her “entire adult life.” She indicated that her condition
affected her ability to work in her career field and at the grade level she was qualified for as her
condition limits her ability “to cope with too much stress.” Complainant admitted that she did not
notify the Selecting Official and the panelists of her medical condition. The panelists stated that
they were unaware of Complainant’s disability status, nor that of the other candidates.

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Complainant maintained that the panelists might have perceived that she had a disability. She
stated that when a panel member asked her why she did not work between May 2007 and May
2008, she stated that she took a year off to parent her daughters, but did not mention she was also
recovering from a worsening of her condition because she feared discrimination. Complainant
indicated that she was able to perform the essential functions of the Procurement Analyst position
and did not anticipate the need to request a reasonable accommodation.

The panelists stated Complainant’s qualifications were good but did not fit with the position they
were filling. They stated that Complainant had good interview responses but did not have the best
interview responses, and that she was minimally qualified based on her responses to the
knowledge, skills and abilities (KSA) required for the position. The Agency added that, in
contrast, the selectee was considered an expert in the relevant tasks as indicated by her responses
to all of the required KSA questions because she had obtained the specific knowledge and
experience in the required areas by previously performing similar tasks while in the hiring
Agency’s acquisition department.

The SO stated that although Complainant had an interesting work history, including experience as
an attorney, the panel focused primarily on the required skills articulated in the job announcement
i.e., skills as an Automation Specialist with contracting knowledge. She stated the selectee had
been a secretary, and had very good automation skills and a background in acquisition.

The Agency noted that Complainant ranked near the bottom 50% of the applicants (#6 out of 12)
for the position; whereas C1 was ranked #2. C2, the candidate who ranked #1, was selected for
the GS-11 position. The Agency indicated that the KSA responses and the interview ratings were
the critical distinguishing factors between Complainant and the selectee; and that their ages were
not considered throughout the selection process.

Regarding Complainant’s disability claim, the Agency maintained that Complainant failed to show
disparate treatment based on her disability because she did not establish that the Agency had any
knowledge of her disability, and she did not show that the selectee was outside of her disability’s
protected class.

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. In accordance with Complainant’s request, 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.

CONTENTIONS ON APPEAL

Complainant argues that the panel and hiring officials showed pretext by not following merit
promotion procedures when they selected a younger candidate. She asserts the panel and hiring
officials clearly engaged in age and disability discrimination by using a “specious” rating system
for the interview, by lowering her scores, and by failing to review her resume.
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She adds that had they followed merit system principles, she would have been selected, not the
younger candidate. She also asserts that a comparison of her application documents, the content of
her interview, and her superior experience in the contracting career field demonstrates that she
should have been hired.

The Agency argues that Complainant failed to demonstrate any pretext for discrimination with a
showing that her applicable skills were “plainly superior” to those of the selectee.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To meet his burden of proving that the Agency’s actions were pretextual, Complainant needs to
demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in
the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No.
0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).

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In a nonselection case like this, one way that Complainant can show pretext is by establishing that
the alleged disparities in qualifications between her and the selectee are “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th
Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).

Assuming, arguendo, that Complainant established a prima facie case of disability and age
discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. In this case, Complainant alleges that the Agency did not select her for the GS-9 position
of Procurement Analyst, because of her age and disability. The Agency explained that
Complainant could not demonstrate her applicable skills were plainly superior to C1’s for the
position; and that neither Complainant’s disability nor her age was a determining factor in her non-
selection. Moreover, the Agency explained that although Complainant had an interesting work
history, including experience as an attorney, the panel focused primarily on the required skills
articulated in the job announcement i.e., skills as an Automation Specialist with contracting
knowledge. They stated the selectee had been a secretary, and had very good automation skills
and a background in acquisition.

We find no persuasive evidence that Complainant was discriminated against in this matter because
of her age or disability. At the outset, we note that lack of evidence that Complainant’s medical
condition played any role in this matter. Complainant merely speculated that the panelist may
have perceived that she had a disability. The record, however, indicates that Complainant admitted
that she did not notify the Selecting Official or the panelists of her medical condition. Furthermore,
the panelists stated that they were unaware of Complainant’s disability status, nor that of the other
candidates.

We also find no persuasive evidence that Complainant’s age played a role. The Agency has
explained, and the evidence demonstrates, that neither the SO nor the panelists were aware of the
age of any of the candidates; and C1 was selected because she outperformed Complainant in the
selection process and not because of her age.

In an effort to show pretext, Complainant refers to the SO’s statement that she was not a real
Contracting Officer Representative as evidence of animus. She stated that she believed whoever
told the SO that falsehood was motivated by hostility; and that a panelist rated her lower after
reaching a consensus with another panelist after her interview. We note, however, that even
crediting Complainant’s interpretation this would indicate that SO’s statement was based on
misinformation, not discriminatory animus based on her age or disability.

We note that employers have broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by a reviewing authority absent evidence of unlawful
motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the
Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).

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In this case, Complainant has failed to show that she was treated less favorably than other similarly
situated individuals outside of her age and disability groups; and her assertions that the panel and
hiring officials clearly engaged in age and disability discrimination are not supported by the totality
of the evidence. We therefore find that Complainant has failed to present evidence to support her
claims that her nonselection for the position to which she applied was based on her age and
disability.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance
of the evidence in the record does not establish that discrimination occurred.

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).
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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

November 14, 2018
Date