Nicki D.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.Download PDFEqual Employment Opportunity CommissionMar 27, 20180120160119 (E.E.O.C. Mar. 27, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki D.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 0120160119 Agency No. DCAA-CASE-W14-022 DECISION On September 18, 2015, 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 August 17, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Auditor, GS- 0511-12, at the Agency’s Miramar Branch Office in San Diego, California. On November 9, 2014, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of her age (53) when: 1. On September 26, 2014, Complainant was not selected for one of nine Supervisory Auditor positions at the Miramar Branch Office. 2. On June 26, 2014, Complainant was denied overtime. 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. 0120160119 2 The Agency accepted claim (1) for investigation. Claim (2) was dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely manner. The Agency determined that Complainant’s initial EEO Counselor contact occurred on September 26, 2014, which was more than 45 days after she was allegedly denied overtime.2 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. The Agency stated that the vacancy announcement for the nine Supervisory Auditor positions was limited to current and former federal employees with competitive status and others in special categories. Among the knowledge, skills and abilities identified for the position were the ability to evaluate audit programs; the ability to evaluate, monitor and revise annual audit plans; the ability to effectively communicate orally and in writing; and the ability to lead and manage people to accomplish organizational objectives. The Agency noted that one year of specialized experience at the GS-12 or equivalent level was required to meet the basic requirements. Complainant was among 35 applicants who indicated they were eligible for the position. Subsequently, Complainant was among 24 candidates who were interviewed for the position. Two interview panels were utilized to conduct the interviews. The Agency stated that after the interview panels convened, eight candidates were selected for the positions. According to the Agency, the ages of the selectees were 48, 27, 31, 29, 51, 30, 47, and 51 respectively. The Agency stated that a ninth supervisor, age unknown, was selected under the vacancy announcement. The Agency explained that this individual was already a supervisor who had not been interviewed, and was not part of the competitive selection process, as he had initiated a transfer request that had been approved prior to the vacancy announcement. The Agency stated that one candidate declined the offer of employment. According to the Agency, the alternate candidate identified in the selection memorandum was offered the position after the declined offer but it was determined that she was ineligible because she failed to meet the time-in-grade requirement for the position. The Agency explained that in order to fill the remaining slot, it conducted a second interview of three candidates, including Complainant. A candidate born in 1972 was selected but after initially accepting the offer, he declined the position due to health reasons. 2 Complainant did not contest the Agency’s dismissal of claim (2) on appeal, and we exercise our discretion not to consider it further herein. 0120160119 3 The Agency determined that Complainant set forth a prima facie case of age discrimination. The selecting official stated that she followed the interview panels’ recommendations. According to the selecting official, the selections were made based on the candidates’ interview performance and other qualifications as evaluated by the two interview panels. The Agency stated that the interview panel members believed the most critical criteria were interview results and performance appraisal ratings. The selecting official stated that the final selectee was chosen based on his interview performance after the second round of interviews, and that it was a unanimous vote by the panel. The selecting official explained that Complainant had very good technical skills but she did not demonstrate strong interpersonal skills necessary for being successful as a supervisor. The selecting official stated that she believed interpersonal skills are more important than technical skills for a supervisory position. The Agency referenced comments from Complainant’s Branch Manager and former Supervisor. The Branch Manager stated that Complainant is very strong technically but struggles with her soft skills and working with others. The Branch Manager stated that she did not observe Complainant’s interview, but that she participated in the discussion of the candidates in the meeting with both interview panels. The Agency noted that Complainant objected to the characterization of her interpersonal skills and attempted to establish pretext by pointing out that on her last three performance appraisals, she received a rating of “Exceeds Fully Successful” on all of her job elements, including working relationships and communication skills. Complainant argued that she was more qualified than two of the selectees based on her leadership and supervisory experience. Complainant stated that she had served as Lead Auditor since 2010 and teams she led included these two selectees. Complainant noted that she had served as Acting Supervisor during the past three years, which included supervising one of these selectees. The Agency observed that Complainant asserted that she had been assigned the most challenging and high-risk proposals to perform and to manage as a Lead Auditor and she questioned how she could be so effective without strong interpersonal skills. In terms of the two selectees at issue, Complainant stated that she had never been led by either of them and she questioned how much supervisory experience one of these selectees could have received during her assignment to the European Branch Office in the two years prior to her selection. Complainant contended that the selecting official prefers amiable employees who do not speak their mind and that younger employees are more likely to meet that criteria. The Agency rejected Complainant’s arguments to establish pretext. The Agency stated that five management officials were involved in ranking the candidates and making recommendations for selection based on the candidates’ interview performance and other qualifications. The Agency pointed out that each of the management officials stated they were unaware of Complainant’s age at the time of the selections and that four of these officials are near Complainant’s age or older. Additionally, the Agency stated that the selectees were from various age groups and included three individuals near Complainant’s age. 0120160119 4 The Agency stated that the general consensus was that Complainant had given good responses during her interview but that there was a concern that she would not train or give newer or weaker auditors a chance to develop if there was a time crunch. The Agency noted that Complainant had most recently received an “Exceeds Fully Successful” on her performance appraisal. With regard to the selectees, the Agency stated that six of the eight individuals selected through the competitive selection process received higher ratings from the interview panel members than Complainant. The Agency stated that three of the selectees were already in GS-13 positions at the time of their selection. As for one selectee who received the same interview rating as Complainant, the Agency noted that she had a higher rating than Complainant on her most recent performance evaluation. The Agency further stated that the original selectee who subsequently declined the position is approximately the same age as Complainant. With respect to one of the selectees that Complainant claimed to be more qualified than, the Agency pointed out that the selectee had a higher score for her interview and a better rating on her last performance appraisal. The Agency determined that Complainant failed to establish that her qualifications were plainly superior to those of the selectees or to present evidence to show that the Agency’s reasons for its selections were a pretext for age discrimination. With respect to Complainant’s contention that she was more technically competent with greater supervisory experience as a Lead Auditor than some of the selectees, the Agency stated that the selecting official placed greater emphasis on interpersonal or soft skills, including the candidate’s interview performance. CONTENTIONS ON APPEAL On appeal, Complainant submits the letters of delegation of authority that she received to serve as Acting Supervisor from 2011-2014, in an attempt to demonstrate her superior qualifications for the position. The Agency did not submit any statement in opposition to Complainant’s appeal. ANALYSIS AND FINDINGS The Commission generally applies the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), framework to prove discrimination in cases alleging harm by a federal government employer under the ADEA. See Brenton W. v. Department of Transportation, EEOC Appeal No. 0120130554 (June 29, 2017) (applying McDonnell Douglas to ADEA claim); Spencer v. United States Postal Service, EEOC Appeal No. 0120042065 (August 6, 2003). Specifically, the first step of the McDonnell Douglas burden-shifting framework requires a complainant to establish a prima facie case of age discrimination. To do so in nonselection cases, the complainant generally must raise an inference of discrimination by showing: 1) she was 40 years of age or older; 2) she was subjected to an adverse employment action; 3) she was qualified for the job; and 4) there is some reason to infer that the action was related to age, such as ageist statements showing bias by the decision maker, or evidence that she was replaced by someone substantially younger or otherwise was treated less favorably than someone substantially younger. Brenton W., EEOC Appeal No. 0120130554. 0120160119 5 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We shall assume arguendo that Complainant set forth a prima facie case of age discrimination with regard to her nonselection. The Agency stated that the interview panel members believed the most critical criteria were interview results and performance appraisal ratings. The Agency explained that Complainant was not selected for a Supervisory Auditor position due to her interpersonal skills which required improvement in order for her to be a successful supervisor. The Agency stated that Complainant had a good interview but that many of the selectees had a higher score for their interviews. The Agency asserted that there were selectees who also had been rated higher than Complainant on their most recent performance appraisals. Additionally, three of the selectees were already in GS-13 positions at the time of their selection. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its nonselection of Complainant. Complainant maintains that her technical credentials and supervisory experience warranted her selection especially in comparison to two of the selectees who are significantly younger than her. It is evident that Complainant was regarded as having very strong technical expertise. Complainant also had several opportunities to serve in an Acting Supervisor capacity and had led teams as a Lead Auditor. However, these qualifications were not considered all that was needed to become a successful supervisor. The selecting official stated that she believed interpersonal skills are more important than technical skills for a supervisory position. Complainant’s interpersonal skills were not considered to be as developed as her technical ability. Moreover, most of the selectees scored higher on their interviews than Complainant. As for one of the selectees that Complainant claimed to be more qualified than, the Agency noted that this selectee had a higher score for her interview and a better rating on her last performance appraisal. The Agency noted that the other selectee specifically challenged by Complainant was not included in the investigative report because this individual, who was the alternate originally, was ultimately not chosen after it was determined that she lacked the time-in-grade requirement for the Supervisory Auditor position. We take note of the fact that the ages of four of the selectees are 47, 48, 51, and 51, relatively close to Complainant’s age of 53. Upon review of the entire record, we find that Complainant has failed to establish that the Agency’s explanation for her nonselection was pretext intended to hide discrimination based on her age. 0120160119 6 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 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 (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. 0120160119 7 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. 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 March 27, 2018 Date Copy with citationCopy as parenthetical citation