[Redacted], Cassey B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020001483 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassey B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001483 Hearing No. 430-2019-00527X Agency No. DON-18-00060-02252 DECISION On December 12, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 13, 2019 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as a Supervisory Human Resources Specialist, GS-0201-13, at the Fleet Forces Command facility in Norfolk, Virginia. On September 5, 2018, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), disability (physical), and age (62) when: 1. On April 30, 2018, she was not selected for the Supervisory Human Resource (HR) Specialist GS-14 position (Management Identification Candidates); 2. She was not given the same opportunity to compete for the Supervisory HR Specialist GS-14 position (Management Identification Candidates) which created a hostile work environment as evidenced by the following incidents: 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. 2020001483 2 a. Complainant’s supervisor (S1) told her that he would recommend her for his previous job, even though it was not a GS-13 supervisor position. S1 tried to convince her if she applied for another GS-14 position, it would not be a demotion, b. On January 12, 2018, the Program Analyst (PA) told Complainant she would not be qualified for the new position because she always worked in the same Department in N1D, c. On January 12, 2018, PA asked Complainant if she would consider another position currently occupied in the same directorate or if she would prefer to find a position outside of N1D, d. From November 2017 to April 29, 2018, Complainant was not allowed to rotate as a temporary supervisor like her counterparts, e. On December 14, 2017, S1 sent a text message to Complainant asking if she would like to consider a different position outside of Global Force Management. He proposed a position in a different directorate where her second-level supervisor (S2) is the supervisor, and f. On an unknown date, S2 and PA stated Complainant lacked experience in the other N1D codes and outside entities; and 3. On September 7, 2018, Complainant was escorted out of her building and told she was being put on a special project with limited software access on her computer. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge or to receive a final agency decision. Complainant initially requested a hearing on June 28, 2019, but on September 10, 2019, she withdrew her request. Accordingly, the Agency issued its final decision on November 13, 2019, in which it concluded that Complainant failed to prove that she had been discriminated against as alleged. CONTENTIONS ON APPEAL On appeal, Complainant specifically states that she is only challenging the promotion action at issue herein. Complainant argues that she was the most qualified applicant for the position and that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for not selecting her. Additionally, Complainant claims that selection panelists were instructed to destroy their notes following the selection pursuant to the Agency’s policy. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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 2020001483 3 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”). 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, 802 (1973). Her first step would generally be to 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 Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the selecting official (SO) articulated a legitimate and nondiscriminatory reason for choosing the selectee over Complainant for the position in question. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to the SO, she and the two other selection panel members all found the selectee to be the best qualified candidate for the position. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission notes that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (March 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra, 450 U.S. at 259. In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The evidentiary record does not support this contention. Both panelists gave the selectee the highest ratings on both his application package and his interview performance, and their affidavit testimony is consistent. Investigative Report (IR) 317, 661, 664, 674. They described how the selectee gave precise and detailed answers to all of the interview questions except for one question, and how Complainant’s answers to several interview questions were lacking in detail, particularly with regard to discussing her accomplishments. IR 662-63, 675. On appeal, Complainant argues that the record included no testimonial or documentary evidence as to how the panelists arrived at the rating scores. We disagree. 2020001483 4 The application packages and the clearly articulated reasons for the panelists’ assessments as set forth in their affidavits constituted sufficient evidence to support the SO’s decision to pick the selectee. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Complainant contends that the SO gave the selectee and two other candidates the opportunity to serve as acting supervisor in a rotational detail. The SO explained that all three had experience in the relevant program areas and had served previous stints as acting supervisors. IR 567. The panelists averred that this did not factor into their assessment of the candidates’ qualifications. IR 665, 676-77. Complainant also points out that the Agency has a policy mandating the destruction of interview notes. The record supports Complainant’s contentions in this regard. An interview panel confidentiality form dated October 31, 2017 specifically states that panel members must ensure that confidential papers must be destroyed at the end of a selection process, and that such confidential papers include copies of resumes and interview notes. IR 504. That said, however, the fact that the destruction of the interview notes was a routine practice at the Agency, tends to negate any inference that the Agency destroyed the notes in anticipation of Complainant's filing an EEO complaint. Complainant presents no evidence tending to show that the panelists’ adherence to this policy reflects discrimination on their part or that the selection process was otherwise tainted by discriminatory animus.2 Beyond her assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the SO’s explanation that the selectee was the superior candidate for the position, or which cause us to question the veracity of the SO and the other panelists. As Complainant ultimately chose not to proceed with 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. Based upon that record, we find that Complainant has not presented evidence sufficient to establish the existence of an unlawful motive on the part of the SO or any other participant in the selection process at issue. 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. 2 The Commission strongly advises the Agency to review and if necessary, revise its policies concerning document retention so as to bring those policies into compliance with 29 C.F.R. § 1602.14. See Marguerite L. V. Dep't of the Interior, EEOC Appeal No. 0120160189 (May 17, 2018). 2020001483 5 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). 2020001483 6 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 June 17, 2021 Date