Owen C.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171819 (E.E.O.C. Nov. 30, 2018)

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

Owen C.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120171819

Hearing No. 541-2014-00002X

Agency No. 12-13-008

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 27, 2017 final
order concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. §
1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Supervisory Accountant for the Financial
Operations Division, one of five divisions comprising the Office of the Chief Financial (OCFO),
at the Agency’s Finance Center in Denver, Colorado.

Complainant applied for the Financial Officer, GS-501-15, position announced under Vacancy
Announcement Number 12D-002-SC. The position was responsible for the supervision and
management of all five OCFO divisions. On December 3, 2012, Complainant learned that he was
not selected. Believing that his non-selection was discriminatory, on February 20, 2013,
Complainant filed a formal EEO complaint based on sex.

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, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
However, over Complainant's objections, the AJ assigned to the case granted the Agency’s
December 15, 2015 motion for a decision without a hearing. On March 14, 2017, the AJ issued a
decision, without a hearing, finding no discrimination.

Assuming that Complainant established a prima facie case, the AJ considered the Agency’s
proffered legitimate, non-discriminatory reasons for not selecting Complainant for the
promotion. According to the Agency, fourteen individuals, including six Agency employees,
applied for the position and were included on the Merit Promotion Certificate of Eligibles. Of the
Agency employees, half were male and half were female. All candidates were asked the same
questions and given thirty minutes for their interview.

The AJ noted that both the interview panelists and Complainant agreed that his interview was
brief, less than ten minutes. According to the interview panelists, Complainant recited his resume
while more successful candidates answered the questions succinctly, but then provided specific
examples from their experiences and how these experiences related to the vacant position.
Complainant’s interview performance was considered to be in the bottom of the group.
Consequently, Complainant was not one of the four individuals chosen to advance to the second
round. After the second round of interviews, one panelist ranked the Selectee as first and Person
B as second. The other panelist reversed the ranking of the same two individuals. When the two
names were submitted to the SO, he asked the panelists to recommend one name. They chose the
Selectee.

According to the AJ, “Complainant’s self-serving personal belief that he was more qualified is
insufficient to establish pretext here.” While one witness (hereinafter “Manager C”) stated that
he believed Complainant to be more qualified, the AJ reasoned that there was no evidence that
the panel held the same view or that it was a commonly held belief. Further, Manager C did not
participate in the selection process and did not observe Complainant’s poor interview
performance. While Complainant argued that the interview questions were not well designed,
the AJ found that the focus should be on Complainant’s brief answers and the more detailed
responses provided by the Selectee. As for Complainant’s assertion that the SO had a history of
hiring mostly women, the AJ stated that, even assuming this preference to be true, the SO was
not involved with the interviews and merely relied on the panelists’ recommendations.

On March 27, 2017, the Agency issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the
instant appeal.

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ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 order 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. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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).

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On appeal, Complainant reiterates his prior efforts to show pretext. For example, Complainant
states that while the other applicants were asked six questions, he was only asked five. He
disputes that the second round of interviews were conducted by the same panelists as the first
round. Complainant challenges the SO’s statement that he instructed the panelists to find a
“strategic thinker”. Complainant asserts that the SO did sit in on some interviews.

The AJ specifically addressed many of Complainant’s concerns. Regarding Complainant’s being
asked one less question, the AJ acknowledged that while this could be perceived as some
evidence of pretext, there was no evidence as to why Complainant was given one fewer question.
It “requires a substantial leap to conclude it was due to discrimination” as to some non-
discriminatory reason. Moreover, noted the AJ, there was no evidence that Complainant’s
overall interview performance would have been viewed as improved with the additional
question.

As for Complainant’s factual disputes, the AJ found that Complainant lacks any supporting
evidence. Moreover, the AJ found that Complainant has not shown how any of these facts would
lead to a finding of discrimination. For instance, whether or not SO instructed panelists to find a
“strategic thinker” does not have an impact upon the ultimate question of whether Complainant’s
non-selection was discriminatory.

Similarly, Complainant spends much of his appeal statement listing reasons why he is more
qualified than the Selectee. Complainant primarily relies on his additional years working at the
Denver Finance Center. His attacks on the Selectee’s qualifications, however, are unsupported.
For example, while Complainant believes the Selectee had little experience prior to her time at
the Agency, she in fact spent almost thirty years in the private sector. While both Complainant
and the Selectee were qualified for the position, Complainant failed to show that he was plainly,
objectively, superior. Rather, the Agency noted that the Selectee had experience managing
approximately seventy employees, whereas Complainant’s experience was with fewer than
twenty employees. The Selectee’s interview responses reflected strategic thinking and a long-
term vision for the organization. Contrastingly, Complainant was unable to convey how he
would lead. In the words of one panelist, “he failed to market himself.”

Complainant has failed to meet his burden in showing that the Agency’s proffered legitimate,
non-discriminatory reasons were pretexual. The instant record does not contain evidence that
Complainant’s non-selection was motivated by his sex.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.

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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

November 30, 2018
Date