Maricela P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120171200 (E.E.O.C. Oct. 25, 2018)

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

Maricela P.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120171200

Agency No. ARRRIA12MAY09178

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 31, 2014
final action concerning an 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.

BACKGROUND

During the period at issue, Complainant worked as a Contract Specialist, GS-1102-13, at the
Agency’s U.S. Army Contracting Command in Rock Island, Illinois.

On June 4, 2012, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on sex (female) and age (over 40) when:

on April 6, 2012, she was not selected for the position of Supervisory Contract
Specialist, GS-1102-14, advertised under Vacancy Announcement Number
(VAN) NCBG11491762.

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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After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. Complainant did not respond to the Agency’s motion. On July 9,
2014, the AJ issued a decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

Complainant was one of 20 applicants placed on the referral list for consideration, which
consisted of 11 males and 9 females. A review panel, consisting of three Contract Specialists,
reviewed the applicants’ resumes on the referral list and referred the top 15 best qualified
applicants, including Complainant, to the selecting official for consideration.

The Supervisory Contract Specialist was the selecting official. She interviewed the top scoring
applicants, including Complainant, referred by the review panel. The selecting official scored
each applicant based on the following four criteria: (1) management and leadership ability; (2)
ability to promote collaboration; (3) contracting knowledge and experience; and (4) equal
employment opportunity. Following the interviews, the selecting official selected 6 applicants
for the 6 Supervisory Contract Specialist positions.

The selecting official (female, year of birth 1961) stated that she selected 6 applicants (4 male
applicants, 2 female applicants; and 3 were over age of 40, 2 were under age of 40) based on
their highest ranking scores and interviews. The selecting official stated that in contrast to
Complainant’s interview, each of the 6 selectees “provided thorough answers addressing all or at
least the majority of the questions that were asked, because there were multiple parts to these
questions. They were somewhat complex…these people were able to relate experience of a
depth and breadth that related that they had both the ability and the experience that made them
the most highly qualified for the position relative to the Crediting Plan or the scoring criteria.”

The record reflects that the top 6 selectees received the following overall interview scores: 73,
59, 59, 54, 54, and 48 points respectfully while Complainant was ranked seventh highest with an
overall interview score of 39 points.

The selecting official stated that she did not select Complainant because she was not one of the
highest ranking applicants. The selecting official noted that during her interview, Complainant
focused more on listing all the areas where she had worked but were less directly related to the
interview questions. Moreover, the selecting official stated that Complainant’s sex and age were
not factors in her decision to select the 6 selectees for the subject positions.

The Executive Director of the Army Contracting Command (male, year of birth 1962), also
Complainant’s fourth level supervisor, stated that he was the concurring official. The concurring
official stated that he approved the selecting official’s decision to select the 6 top ranking
applicants for the subject positions. Furthermore, the concurring official stated that he did not
discriminate against Complainant based on her sex and age.
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Based on this evidence, the AJ concluded the responsible management officials articulated
legitimate, non-discriminatory reasons for the selection decision made, which Complainant failed
to prove was pretext masking discriminatory animus. The Agency, in its final decision, adopted
the AJ’s decision.

The instant appeal followed. In response, the Agency noted that Complainant improperly filed
her appeal with the EEOC Chicago District office rather than the Commission.

ANALYSIS AND FINDINGS

As a threshold matter, the Commission has held that where proper appeal rights have been given,
an appeal is untimely filed where the appeal is mailed to the wrong office, even if it would have
been timely filed if mailed directly to the Commission. See Henry v. Department of Veterans
Affairs, EEOC Request No. 05901116 (November 30, 1990). In several subsequent cases,
however, the Commission has allowed exceptions to the Henry rule, where it was evidence that
the complainant was earnestly attempted to preserve his/her appeal rights. See Rodriguez v.
Department of the Air Force, EEOC Request No. 05940933 (June 2, 1995) (confused
complainant mailed appeal within the limitations period to an EEOC District Office); Thompson
v. Department of the Army, EEOC Request No. 05940588 (February 24, 1995) (confused
complainant timely filed appeal with agency’s EEO Office). Because complainant filed an
appeal with the Commission’s EEOC Chicago District office, we find that despite her confusion,
she was earnestly attempting to preserve her appeal rights. Therefore, we find that her appeal is
timely. We will now proceed to addressing the merits of Complainant’s complaint based on the
evidence gathered during the investigation.

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.
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Here, however, Complainant failed to establish such a dispute. Even construing any inferences
raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination.

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.2

2 On appeal, Complainant does not challenge the July 10, 2012 partial dismissal issued by the
agency regarding three other claims (that she was discriminated against on the bases of sex and
age when on April 7, 2011, she was not selected for a Supervisory Contract Specialist position,
FS-1102-14, advertised under VAN NCBG10729301; on August 27, 2009, she was not selected
for a Temporary Supervisory Contract Specialist position, advertised under VAN YA-1102-03;
and on or about August 17, 2009, she was not selected for a Supervisory Contract Specialist
position, YA-1102-03, advertised under VAN NCBG08797753). Therefore, we have not
addressed these issues in our decision.

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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.
0120171200 6
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
October 25, 2018
Date