[Redacted], Ayana C., 1 Complainant,v.Christine Wormuth, Acting Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020002244 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ayana C.,1 Complainant, v. Christine Wormuth, Acting Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 2020002244 Hearing No. 430-2020-00038X Agency No. Case 2018-01 DECISION On February 10, 2020, 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 February 6, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant established that the Agency subjected her to discrimination on the bases of race (African-American, Hispanic, Caucasian, Hispanic Latino), color (brown), age (DOB: 1970), sex (female), and/or national origin (Hispanic) when she was not selected for an Aircraft Systems Supervisor 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. 2020002244 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as dual-status technician Aircraft Mechanic Supervisor, WS-8852-09, at the Agency’s Army Aviation Support Facility #2 in Salisbury, North Carolina. On May 24, 2018, the Agency announced an Aircraft Systems Supervisor, WS-8801-10, vacancy located in Salisbury, North Carolina, which was open through June 25, 2018. Complainant and two other candidates were interviewed for the position, which was selected by a board. Agency officials explained that the board consisted of the selecting official, a Chief Warrant Officer Three (CW3), a Logistics Management Officer (LMO), a First Lieutenant, and a Chief Master Sergeant. Each board member scored the candidates in the areas of: Work History, Experience and Seniority, Special Qualifications and Skills, Job-related Education and Training, Interview Skills, and Assessment of Potential. Complainant received scores of 94, 98, 82, and 89 from the board for a total of 363 points. The selectee’s scores were 96, 97, 85 and 92 for a total of 370 points. In her formal complaint, Complainant averred that she was at a disadvantage when applying for the position because of her history with a member of the selection board. Specifically, Complainant stated that CW3 did not agree with Complainant’s selection to the position as Aircraft Mechanic Supervisor and the two of them “bumped heads ever since.” Complainant added that prior to the interview process, CW3 spoke to a Sergeant First Class about applying for the position and when the Sergeant First Class recommended Complainant for the position, CW3 asked “what makes you think we want [Complainant] for the position?” According to Complainant, on August 29, 2018, CW3 informed her that she was not selected for the Aircraft Systems Supervisor position, stating that the selectee was chosen because he had worked in more shops than Complainant. In her formal Complainant, Complainant stated that she did not understand why she was not selected based on her supervisory experience at the facility. Complainant explained that she was in the active duty Air Force Aircraft Metal Technology section for 10 years, held various leadership positions, and worked in multiple shops in the Allied Shops hangar. Further, Complainant asserted that the selectee did not have supervisory experience at the facility. EEO Complaint On February 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American, Caucasian, Hispanic Latino), national origin (Hispanic), sex (female), color (Brown), and age (48) when: on August 29, 2018, she was not selected for the Aircraft Systems Supervisor, WS-8801-10, vacancy. 2020002244 3 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 (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to show good cause for why she was not available at the Initial Conference on November 26, 2019. The AJ remanded the complaint to the Agency, and 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 The parties did not submit arguments on appeal. 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 Complainant alleges that she was discriminated when she was not selected for the position of Aircraft Systems Supervisor, WS-8801-10. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant may establish a prima facie case of discrimination in the non-selection context by showing that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was not selected for the position; and (4) she was accorded treatment different from that given to persons otherwise similarly situated who are not members of her protected group, or in 2020002244 4 the case of age, who are considerably younger than she. Complainant v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002); Complainant v. Dep't of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Here, the record reflects that the Agency selected a candidate outside of Complainant’s protected classes. There is no dispute that Complainant was qualified for the position, and we find that Complainant clearly has met prongs 1-4, as described above. As such, we find that Complainant has established the relatively light burden of a prima facie case of discrimination based on her protected classes. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A31036 (Mar. 18, 2004) (complainant established a prima facie case on the bases of race, age, and sex by demonstrating that a similarly situated person not of his race, age, and sex was treated more favorably than he when that person was selected for the position); Complainant v. U.S. Postal Serv., EEOC Appeal No. 07A30024 (Feb. 25, 2004) (complainant established a prima facie case based on sex simply by showing that male individuals were selected over her). Because Complainant established a prima facie case of discrimination based on her protected classes, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant. While we note that an agency's burden of production is not onerous, it must provide a specific, clear, and individualized explanation for its selection decision. This is required in order for a complainant to have the opportunity to prove that the asserted reason was a pretext for discriminatory animus. See Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070121 (Nov. 14, 2011) (agency failed to meet its burden of production by simply explaining the general mechanics of the selection process but not providing an individualized explanation for complainant's specific score) (citing Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004)). Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Specifically, management stated that Complainant was not selected for the position to which she applied because her combined total score from her resume and interview was less than that of the selectee based on the scoring matrix. Agency officials affirmed that score sheets were turned in with comments to support each rating and the selectee received the highest average score. Report of Investigation (ROI), at 12, 274, 286. Board members reported that Complainant had only worked in one of the shops and had little to no experience with the other shops, while the selectee had worked in all of the shops except one. Id, at 274, 287, 293. As such, the board members concluded that the selectee’s work history and credentials were more in line with the position than the other candidates. Id. at 279-280. The Commission has previously found that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Serv., EEOC Appeal No. 0120110338 (Mar. 23, 2011), citing Tex. Dep't of Cmty. Affairs, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). 2020002244 5 Further, we note that in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs, 450 U.S. at 259. In this case, Complainant presented no evidence showing that her non- selection was due to an unlawful factor. As such, we find that Complainant did not establish that the Agency discriminated against her based on her protected classes when it did not select her for the position. To the extent that Complainant asserts that she is better qualified due to additional years of experience, the Commission has found that number of years of experience does not establish an applicant's qualifications as observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). Complainant maintains that she possessed superior qualifications for the position. A review of the selectee’s resume indicates that, despite Complainant’s assertion, the selectee had prior supervisory experience. Specifically, the selectee’s resume indicates that he obtained supervisory experience as a Helicopter Platoon Sergeant and an Avionics Systems Repair Supervisor. The selectee’s resume further demonstrates multiple leadership courses. As evidence of pretext, Complainant offers statements made by CW3 during the application period, which are corroborated by witnesses. For example, witnesses reported that CW3 openly stated that he would not hire Complainant. ROI, at 12, 43. When questioned on the statement, CW3 indicated that he wanted the best candidate for the job and not a particular person. Id. at 45. An additional witness provided a statement indicating that he reported to CW3 that Complainant was well qualified for the position and that he did not believe that the selectee was qualified for the position. The witness further stated that he felt that Complainant was being treated unfairly and being discriminated against for “being a woman and a minority. This is not the first time this has happened at this facility where a woman has been discriminated against.” Id. at 47-48. However, we do not find that these statements contradict Agency testimony regarding the selection process for the Aircraft Systems Supervisor position or establish the Agency’s proffered reasons were false. Therefore, we find that Complainant has not shown pretext for discrimination, and she has not proven by a preponderance of the evidence that the Agency discrimination against her when she was not selected for the position. 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 finding no discrimination. 2020002244 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020002244 7 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 September 7, 2021 Date