Madlyn F.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jan 6, 2017

0120150447 (E.E.O.C. Jan. 6, 2017)

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

Madlyn F.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120150447

Agency No. HS-HQ-01855-2013

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the September 30, 2014 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 Program Analyst
at the Agency’s Headquarters in Arlington, Virginia. On January 14, 2013, Complainant
applied for a Contracting and Acquisitions Advisor position, advertised under Vacancy
Announcement FS-815012-AC13 (VA-1). Complainant was interviewed twice for the
position. On March 12, 2013, management selected another applicant (Selectee 1) for the
position.

Additionally, on January 14, 2013, Complainant applied for a Supervisory Management and
Program Analyst position, advertised under Vacancy Announcement FS-814608-CA13 (VA-2).
On March 11, 2013, management selected another individual (Selectee 2) for the position.

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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On January 22, 2013, Complainant applied for the position of Supervisory Executive
Secretariat, announced under Vacancy Announcement FS-814623-AY13 (VA-3). Management
ultimately did not make a selection for the position. On January 22, 2013, Complainant also
applied for a Management and Program Analyst/Policy Analyst position, advertised under
Vacancy Announcement FS-815258-CA13 (VA-4). Complainant was subsequently informed
by the Office of Personnel Management that she was not eligible for the position because she
did not possess the required experience.

On June 4, 2013, Complainant applied for a Supervisory Management and Program Analyst
position, advertised under Vacancy Announcement FS-891485-AC13 (VA-5). On June 27,
2013, Complainant declined an interview for the position. Management ultimately selected
another applicant for the position.

In June 2013, Complainant submitted a request to attend seven training classes. Management
denied her request for three classes, including Acquisitions Law; Advanced Federal Contract
Law; and Simplified Acquisition Procedures. Additionally, Complainant submitted a request
to attend the Blacks in Government (BIG) Conference. Management denied the request.

On October 14, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and age (48) when:

1. From July 22, 2013 to August 2, 2013, management denied her training
opportunities while providing training opportunities to white female co-workers
younger than 40 and white male co-workers of any age; and

2. On June 27, 2013, she learned that management did not select her, but rather
selected white female co-workers younger than 40 for positions as Supervisory
Management and Program Analyst (Vacancy Announcement FS-891485-AC13);
Contracting and Acquisitions Advisor (Vacancy Announcement FS-815012-AC13);
Supervisory Management and Program Analyst (Vacancy Announcement FS-
814608-CA13); Supervisory Executive Secretariat (Vacancy Announcement FS-
814623-AY13); and Management and Program Analyst/Policy Analyst (Vacancy
Announcement 815258-AC13).

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 Equal
Employment Opportunity Commission 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 assumed arguendo that Complainant established a prima facie case of
discrimination and found that management had articulated legitimate, nondiscriminatory
reasons for its actions. First, the Agency addressed Complainant’s non-selections. As to VA-
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1, the Selecting Official (SO-1) stated that Complainant was among the candidates initially
chosen for interviews by the first panel, but the panel failed to reach a consensus regarding a
selectee. A second panel was appointed, and they unanimously selected Selectee 1 over
Complainant. With respect to VA-2, all three panel members who interviewed the applicants
agreed that Complainant was not the best qualified applicant for the position. Complainant was
identified as the second alternate or third choice.

Regarding VA-3, the Chief of Staff confirmed that no selection for the position was made
because leadership later decided that the position was no longer needed. The Chief of Staff
stated that another employee was eventually detailed into the position because leadership
wanted to move her out of her previously assigned work area. As to VA-4, Complainant did
not receive an interview for the position because she was informed that she did not possess the
requisite qualifications for the position. With regard to VA-5, Complainant admitted that she
declined to interview for the position after management refused to provide her with the names
of the individuals on the interview panel. As a result, Complainant was not considered for the
position because she withdrew from the interview process.

Next, the Agency analyzed Complainant’s training-related claims. Complainant alleged that on
April 10, 2012, she requested to attend a Physical Security training class in Glynco, Georgia,
but her request was denied. The Chemical Support Section Supervisor (S2) stated that he did
not deny Complainant’s request; instead, he stated that he approved it and even assisted
Complainant in processing her request. S2 affirmed that on April 11, 2012, he was advised by
the division’s training coordinator that Complainant’s request could not be processed because
she was not current with her mandatory departmental training requirements. Further, S2
asserted that on April 20, 2012, he again approved Complainant’s request to attend the training
class, assuming that Complainant resolved her issues regarding mandatory training.

Complainant further alleged that in June 2013, she submitted a request to her first-level
supervisor (S1) to attend seven training classes, but he only approved four. S1 affirmed that
he informed Complainant that seven training classes would result in too much time out of the
office for training since the classes would occur during the fourth quarter of the fiscal year. S1
stated that he was concerned about the impact Complainant’s absence would have on the office
workload. S1 asked Complainant to choose four of the seven classes requested and, when she
refused, he chose four classes for her. Finally, with respect to the BIG conference, S1
maintained that he informed Complainant that the conference was not considered mission-
critical training; therefore, it could not be approved due to government budget sequester.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant was not discriminated
against as alleged. The instant appeal followed.
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CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s reasons for its actions are unpersuasive,
contrived, and pretext for unlawful discrimination. With respect to VA-1, Complainant
contends that the record shows that her qualifications and experience were superior to Selectee
1’s. Complainant questions Selectee 1’s experience and qualifications as stated in his resume.
Regarding VA-2, Complainant asserts that the overwhelming evidence shows that her
qualifications were plainly superior to Selectee 2’s. As to VA-3, Complainant claims that the
position was re-advertised after January 2013. Regarding VA-4 and VA-5, Complainant
argues that Agency management consistently demonstrated unusual business practices or
suspect procedures and provided implausible justifications. Accordingly, Complainant requests
that the Commission reverse the FAD. The Agency did not submit any brief or statement in
opposition to Complainant’s appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 Complainant established a prima facie case of
discrimination on the alleged bases, the Commission finds that the Agency articulated
legitimate and nondiscriminatory reasons for its actions. More specifically, as to
Complainant’s non-selection for VA-1, SO-1 stated that Complainant and two other candidates
were chosen for interviews from the GS-14 Competitive Merit Certificate and Selectee 1 was
chosen from the GS-13 Competitive Merit Certificate for an interview. ROI, at 246. SO-1
explained that management held an initial interview panel with the candidates, but held a
second interview panel after the first interview panel failed to agree on a selection decision.
Id. Following the second round of interviews, the interview panel unanimously believed that
Selectee 1 was the best candidate. Id. at 247. SO-1 added that he consulted with Selectee 1’s
then-supervisor who provided a very positive and glowing recommendation. Id. SO-1 noted
that Complainant and Selectee 1 had similar qualifications; however, he rated Selectee 1 higher
as Selectee 1 demonstrated better knowledge in the relevant laws and regulations; better
0120150447

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knowledge in the processes and procedures; better knowledge in analytical and evaluative
techniques to assess program operations; and better ability to communicate effectively. Id. at
248-49. As a result, the panel unanimously agreed that Selectee 1, based on his application
package; responses to the interview questions; and recommendations, was the best candidate.
Id. at 231, 249.

Regarding VA-2, SO-2 stated that Complainant demonstrated a good understanding of the
regulations and had the relevant experience; however, Selectee 2 had more knowledge and
understanding from her position in the Policy Branch. ROI, at 521. Further, SO-2 stated that
during her interview, Complainant provided vague details in explaining her job experiences
both within the Branch and with other positions. Id. Additionally, the panel did not believe
that Complainant’s leadership experience was as strong as compared to Selectee 2. Id. SO-2
noted that Complainant had experience in the Compliance Branch, but it was during the early
phases of the program and their systems and processes had changed significantly. Id. SO-2
maintained that Selectee 2 was chosen based on her very detail-oriented interview responses,
her vast knowledge of the relevant regulations, her experience working with the field
inspectors, and her supervisory experience. Id.

Regarding VA-3, the Chief of Staff confirmed that leadership decided not to fill the position
because there was no further need for the position. ROI, at 539. The Chief noted an
individual was subsequently selected to serve in a detail assignment for the position because
management wanted to move her out of her assigned work area. Id. at 540. The Deputy Chief
of Staff acknowledged that the position was re-advertised, but no one was selected for the
position. Id. at 544.

As to VA-4, the Office of Personnel Management determined that Complainant’s application
did not demonstrate that she possessed the required qualifications or experience for the
position. ROI, at 192. As a result, Complainant was not included in the merit promotion
certificate and was not considered for the position. Id. at 549. With respect to VA-5,
Complainant was not interviewed or considered for the position because she declined an
interview, which removed her from the selection process. Id. at 468, 475.

Finally, with regard to her training requests, S2 affirmed that he approved Complainant’s April
2012 training request, but it could not be processed because she was not current with her
mandatory training. ROI, at 333. S2 assumed that Complainant rectified the issue because he
approved her subsequent request for training on April 20, 2012. Id. As to her July 2013
requests, S1 stated that Complainant requested seven training classes and he informed her that
seven classes would require too much time out of the office for training. ROI, at 229. S1
explained that it was the fourth quarter of the fiscal year and he was concerned about office
workload. Id. S1 affirmed that he asked Complainant to select four out of the seven training
classes and, when she refused, he selected four classes for Complainant. Id. at 229-30.
Regarding the BIG conference, S1 asserted that the conference was not considered mission-
critical; therefore, it was not allowed due to government budget sequestration. Id. at 230, 244.

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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.
As to her non-selections, one way Complainant can establish pretext is by showing that her
qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may
establish pretext as to her non-selection claims.

Complainant claims on appeal that her qualifications were plainly superior to the selectees’.
Regarding VA-1, Complainant alleges that Selectee 1 may have intentionally falsified his
application and may have been encouraged to do so by SO-1. Complainant has not presented
persuasive evidence that Selectee 1 falsified his resume or that any selection official
encouraged him to do so. Further, the Commission discerns no bias or impropriety in the
evaluation of Complainant's and Selectee 1’s qualifications.

Additionally, Complainant points to her over 20 years of government and private sector
experience and seven years of supervisory experience as evidence that her qualifications were
plainly superior to the selectees’. The Commission notes, however, that number of years of
experience, alone, is insufficient to establish that a candidate's qualifications are observably
superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011).

As Complainant chose not to request a hearing, 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 that Complainant failed to show that her qualifications for the positions at
issue were plainly superior to those of the selectees. In this case, the selectees had attributes
that justified their selections, and the selection officials affirmed that they believed the selectees
were better equipped to meet the Agency’s needs. 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.

The Commission finds no persuasive evidence that Complainant's protected classes were a
factor in any of the Agency's actions. 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 discriminatory animus was a factor in its actions.
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.

CONCLUSION

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
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the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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

January 6, 2017
Date