[Redacted], Dovie W.,1 Complainant,v.Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2020004825 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Dovie W.,1 Complainant, v. Charlotte A. Burrows,2 Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 2020004825 Agency No. 2019-0011 DECISION On August 30, 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 August 7, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED 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. 2 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission’s adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term “Commission” is used when referring to the adjudicatory authority and the term “Agency” is used when referring to the respondent party in this action. The Chair has abstained from participation in this decision. Further, where the EEOC is the respondent agency and the complainant requests a hearing, the EEOC secures the services of an administrative judge who is not an employee of the EEOC. 2 2020004825 The issue presented herein is whether the Administrative Judge properly determined that the Agency did not subject Complainant to discrimination based on disability and age when it did not select her for a vacant position in the Chicago District Office. BACKGROUND Factual Background At the time of events giving rise to this complaint, Complainant was an external applicant for the position of Investigative Support Assistant (ISA), GS-1802-06, in the Agency’s Chicago, Illinois District Office (CDO). The Agency advertised the position on USAJobs under Vacancy Announcement No. CHI- 10288791-261-MER. See Hearing File at 197-98. The announcement indicated that the selectee for the ISA position would be required to “perform a variety of administrative, technical, and clerical functions,” to include handling routine inquiries from members of the public and assisting individuals who believe they have been discriminated against file charges of discrimination. See Hearing File at 197-98. As the selectee for the ISA position would be required to interact with the public, the Agency sought candidates with strong oral communication skills and specifically listed that skillset as one of the core competencies that the candidates would be evaluated on. Id. There was, however, no specific formal educational requirement for the position. Any individual with at least one year of specialized experience (e.g., clerical work) equivalent to the GS-05 level was eligible to apply. Id. As part of the application process, all candidates were required to answer a series of multiple-choice questions on USAJobs regarding their experience and qualifications. The system automatically generated a “Final Rating” score based on the responses of each candidate. Id. at 99-100. Complainant applied for the position in August 2018, while employed as a GS-0203-05, Human Resources Assistant (HRA) at the Department of the Army’s Military Entrance Processing Station (MEPS), also located in Chicago. See Report of Investigation (ROI) at 00165-66. In that position, Complainant primarily assisted recruits during the military entrance process and interviewed them about their criminal background history and drug use. Id. She also fingerprinted the recruits and processed their paperwork. Id. Following the close of the vacancy announcement, staff in the Agency’s Office of the Chief Human Capital Officer (OCHCO) reviewed the applications. On August 24, 2018, OCHCO staff generated a Merit Promotion Certificate and a Schedule A Certificate containing the names and Final Ratings of eligible candidates. ROI at 00059; see also Agency’s Motion for Findings and Conclusions Without a Hearing (Agency’s MSJ) at 2. Candidates who received a Final Rating under 95 were not included on either certificate. Based on Complainant’s responses to the multiple-choice questions, she received a Final Rating of 98 and qualified for the Merit Promotion Certificate. See Hearing File at 103-104. All of the other candidates on the Merit Promotion Certificate received a Final Rating of 100. Id. Due to her knee disability, Complainant also qualified for the Schedule A Certificate. Id. at 129 and 267. 3 2020004825 OCHCO then forwarded the certificates to the Selection Panel at CDO, which consisted of three Supervisory Investigators (Enforcement Supervisor-1, -2, and -3) and one Enforcement Manager. ROI at 00059-60 and 00065.3 The panel members ultimately selected a total of eight candidates to interview, including Complainant. ROI at 00056. Among the eight candidates was one of Complainant’s colleagues from MEPS (Witness-1, W1). W1 worked alongside Complainant as a GS-0203-05, Human Resources Assistant and performed the same duties as Complainant. Id. at 00125. A GS-0962-08, Contact Representative (Witness-2, W2) from the Department of the Treasury also applied for the position. Id. at 00253. While the ages of W1 and W2 are not readily apparent in the record, Complainant averred that W1 and W2, the eventual selectees, were substantially younger than she is. During the interview phase, the Selection Panel members interviewed each candidate using the same set of 12 questions. ROI at 00065. Each panel member took contemporaneous notes and rated each candidate’s answers on a scale of 1 to 10. Id. Complainant’s interview took place on September 7, 2018. During Complainant’s interview, Complainant allegedly requested assistance in adjusting her chair and allegedly informed the panel members, of her own volition, that the gap in her work history was due to “dual knee replacement surgeries.” ROI at 00008. None of the panel members, however, recalled these events. Id. at 00066, 71, 75, and 80. Interview notes from the panel members reveal that when Complainant was asked about her weaknesses, she informed the panel members, in relevant part, that she found it difficult to work with people who do not listen or follow directions. Id. at 00177, 186, and 197. Complainant also informed the panel members of her tendency to become frustrated or flustered when overwhelmed with information and indicated that she had never experienced multiple things going wrong at once or changing in a heartbeat. Id. at 00180-81, and 185. The panel members ultimately did not rate Complainant’s interview responses very highly. Enforcement Supervisor-1 perceived Complainant as not “well-equipped to handle the interpersonal difficulties of the ISA position.” See Hearing File at 242. Enforcement Supervisor- 2 determined that Complainant may not “be good at handling the stressful situations she would face as an ISA.” Id. at 250. Enforcement Supervisor-3 characterized Complainant’s admitted difficulty in interacting with people who “don’t listen or follow directions” as problematic because ISAs “must interact with potential charging parties who are facing the stress of employment discrimination and sometimes need extra help and attention to accomplish tasks.” 3 Due to scheduling conflicts, the Enforcement Manager did not participate in all interviews. See Hearing File at 213. Some candidates interviewed before a four-person panel, and some interviewed before a three-person panel. Id. To account for the variation, the Selection Panel dropped the lowest interview score of candidates who appeared before a four-person panel. Id. The record reflects that Complainant and three other candidates appeared before the full four- person panel. Id. The remaining four candidates, including W1 and W2, appeared before a three- person panel. Id. 4 2020004825 Id. at 232-233. The Enforcement Manager also had the same concerns about Complainant’s interpersonal skills. Id. at 213-214. At the conclusion of the first-round interviews, Complainant received an average score of 80.6 points and ranked fourth among the eight candidates. See Hearing File at 213. Both W1 and W2 received significantly higher scores, earning an average of 98.6 and 100 points, respectively. Id. As Complainant’s interview scores did not place her among the top three candidates, the Selection Panel did not invite Complainant to participate in the second round of interviews. ROI at 00056. Following the second round of interviews, W1 and W2 attained the two highest scores. See ROI at 00057. The Selection Panel then referred both of these candidates to the CDO Director, who served as the Selecting Official for the vacancy announcement. After receiving the necessary approval to hire two ISAs, the CDO Director selected W1 and W2 for the vacant ISA positions. See ROI at 00215; and Hearing File at 306-307. Notably, in selecting W1 and W2, the CDO Director relied exclusively on the Merit Promotion Certificate and did not select any candidate from the Schedule A Certificate. See Hearing File at 354. On December 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental and physical) and age (over 40) when, on October 22, 2018, she became aware that she had not been selected for the ISA position, located at the CDO, advertised under Vacancy Announcement No. CHI-10288791-261-MER. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an independent contractor Administrative Judge (AJ). Complainant requested a hearing. The parties subsequently engaged in discovery. Discovery and Motions Before the AJ During her deposition, Complainant clarified that the full extent of her disability related to her lack of full range of motion in her knees due to knee replacements. See Hearing File at 267. She confirmed that the panel members asked her questions from a list and took notes during the interview. Id. at 280-81. However, Complainant stated that she did not recall the panel members asking anything related to interpersonal skills and emphatically denied making the alleged statements during the interview. Id. at 281-82 and 285-87. Furthermore, while Complainant conceded that she was not present during the interviews of W1 and W2, she categorically maintained that it was not possible that W1 and W2 “had a better interview” than her. Id. at 292-93. Complainant reasoned that the basis for her non-selection had to be discrimination because the panel members were aware of her disability. Id. at 294-95. Complainant also argued that evidence of discrimination could be seen by the fact that the Agency selected two younger candidates to fill the vacancies. Id. Following discovery, the Agency filed a motion for a decision without a hearing, which Complainant opposed. In her opposition, Complainant urged the AJ to not grant the Agency’s 5 2020004825 motion, as she believed that she had presented sufficient evidence to establish a prima facie case of discrimination. Complainant argued that she should have been selected because she was plainly superior to the selectees. In so arguing, Complainant emphasized that she not only had more education than the selectees in the form of a master’s degree in human resources, but also superior work experience, which collectively made her “a more competent/productive employee.” Complainant maintained that the selectees, in contrast, had only undergraduate degrees, and that W1 falsely claimed to have a master’s degree. See Hearing File at 373-84. Complainant also decried the Agency’s alleged preselection of the selectees. She contended that “the decision to select/hire both [selectees] was made long before any of the candidates had a chance to interview.” In support of her contention, Complainant claimed that the Certificate of Eligibles, which the Agency issued on August 24, 2018, contained the notation, “selected,” next to the names of W1 and W2. Complainant argued that such notations demonstrated that “the decision to exclude [her] from being one of the selected candidates occurred on August 24, 2018,” long before she interviewed on September 7, 2018. She alleged that the Agency submitted a falsified version of the Certificate of Eligibles, with the notations omitted, in support of its motion. Complainant reasoned that the Agency submitted the falsified versions in an attempt to hide the preselection of W1 and W2. Complainant maintained that the preselection “could have only [lawfully] happened if the EEOC used a legal Special Hiring Authority that covered these two candidates.” She claimed that W1 only fell into the special category of “applicant who lied on their resume.” See Hearing File at 373-84. Furthermore, Complainant reiterated that the Selection Panel was well aware of her physical disability due to the fact that she needed assistance with adjusting her chair and mentioned her dual knee replacement surgeries to explain the two-year gap in her resume. While Complainant acknowledged that her status as a disabled individual did not guarantee her selection, she was baffled that she only rated fourth after the first round of interviews despite everything she had in her favor. Complainant stated that the only explanation that she could come up with was to attribute her non-selection to discrimination based on age and disability. Id. On June 25, 2020, the Agency filed a reply brief addressing the arguments raised in Complainant’s opposition. In its brief, the Agency maintained that, even assuming that Complainant had established a prima facie case of discrimination based on age and disability, she nevertheless failed to carry her burden of coming forward with sufficient evidence to establish pretext. In so arguing, the Agency initially disputed Complainant’s contention that the CDO Director had preselected W1 and W2. The Agency maintained that, contrary to Complainant’s assertions, the CDO Director entered “the appropriate coding for each applicant” into the USA Staffing system only “after the interviews were conducted and the selections made.” The Agency emphasized that the “falsified” version of the Certificate of Eligibles that it had appended to its motion was actually the pre-interview certificate. In support of such claim, the Agency offered the declaration of the Human Resources Specialist who handled the vacancy announcement. The Human Resources Specialist confirmed under oath that the CDO Director added the notations after the interview process had concluded. Finally, the Agency asserted that 6 2020004825 Complainant failed to establish any dispute as to her qualifications or interview performance. See Hearing File at 79-94, 100-101, and 115-16. With the AJ’s permission, Complainant filed a sur-reply on July 6, 2020, addressing the arguments that the Agency had raised. See Sur-Reply to Reply to Respondent’s June 8 and June 25, 2020. In her sur-reply, Complainant reiterated that she was plainly superior to both W1 and W2 on the following grounds: 1) honesty - she did not lie on her job application; 2) academics - she had a graduate degree in counseling; 3) experience in the field - she had actual experience in processing claims of discrimination; 4) Special Hiring Authority - she was a Schedule A applicant; and 5) she was a 30% service-connected veteran. Id. at 2. In support of her arguments, Complainant submitted several attachments for the AJ’s review. One attachment, in relevant part, consisted of Complainant’s comparative analysis of her interview responses compared to those of W1. See [W1’s] Answers vs [Complainant’s] Answers at 1-5. Complainant’s analysis concluded that there was no plausible explanation for her lower interview scores, as her responses with either similar to W1’s responses or plainly superior in certain areas. Id. The Agency subsequently filed a second reply addressing the arguments contained in Complainant’s sur-reply. In its second reply, the Agency maintained that Complainant’s status as a Schedule A candidate did not entitle her to placement in the position, as federal civil service regulations allowed the CDO Director to select candidates from either the Competitive Merit Promotion Certificate or the Schedule A Certificate. The Agency also reiterated that Complainant still offered no evidence of pretext. In so arguing, the Agency acknowledged that Complainant took issue with the subjective nature of the interview and believed that the Selection Panel intentionally kept her scores low. However, the Agency characterized Complainant’s assertions as speculative. The Agency further maintained that the CDO Director did not preselect W1 and W2, as the designations of “selected” and “non selected” were added to a preexisting document only after completion of the interviews. The Agency emphasized, however, that even if the selectees had been preselected, that in itself was not evidence of discrimination, as the Commission has repeatedly held that agencies may preselect candidates so long as the selection was not based on a prohibited basis. The Agency maintained that Complainant offered no evidence whatsoever that W1 and W2 were selected based on a prohibited basis. Finally, the Agency contended that Complainant’s allegations of fraud against W1 and Commission personnel were unsupported by the record and maintained that the Commission had no jurisdiction to review Complainant’s allegation of discrimination based on her veteran status. See Hearing File at 353-60. The Contract AJ’s Decision Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 8, 2020, motion for a decision without a hearing and issued a decision without a hearing in favor of the Agency on July 27, 2020. See Hearing File at 411-16. In finding in favor of the Agency, the AJ determined that Complainant could not establish a prima facie case of discrimination on the alleged bases because “[t]here is no evidence that Complainant’s qualifications for this particular position were clearly and plainly superior to the three applicants who scored the highest in 7 2020004825 answering the panel’s questions.” Id. at 414. The AJ emphasized that to assume otherwise would override the panelists’ decisions as to which candidate was most qualified. Id. However, notwithstanding Complainant’s failure to raise an inference of discrimination, the AJ nevertheless found that the Agency had legitimate, nondiscriminatory reasons for not selecting Complainant; namely, that Complainant’s responses to the interview questions were comparatively lower in quality than the selectees’ responses. Id. at 414-16. The AJ ultimately concluded that Complainant could not persuasively rebut the Agency’s articulated explanation. Id. Following the AJ’s decision, Complainant emailed the AJ on July 30, 2020, to inquire as to “why the evidence that [she had] provided in [her] Sur-Reply was not mentioned or considered in [the decision].” See Hearing File at 426. Complainant vehemently maintained that she was plainly superior to the selectees for the following reasons: Items such as the Schedule A Certificate of Eligibles, the email where [the CDO Director] admits that she is aware that I am disabled, [W1’s] college Transcript that states she did not earn a Master’s degree as she’s claimed on her resume, and my resume that states that I was Plainly Superior because I not only have a Master’s in Counseling but also possessed experience intaking complaints of discrimination which none of the selected candidates possessed. Id. In response to Complainant’s email, the AJ issued a revised decision on August 3, 2020, addressing the arguments contained in Complainant’s July 30, 2020, email. See Hearing File at 417-24. While the AJ noted that Complainant’s email made “special mention of her evidence that the individuals who interviewed her knew she was disabled,” the IC AJ found that the evidence already showed that the members of the Selection Panel and the CDO Director were aware of Complainant’s disability because Complainant’s name and disability were listed on the Schedule A Certificate and application materials. Id. at fn. 4. The IC AJ ultimately reached the same conclusion as before and concluded that Complainant failed to persuasively show that her non-selection was based on prohibited factors. Id. at 424. That same day, the IC AJ issued a Final Order Dismissing Claim. Id. at 425. On August 7, 2020, the Agency issued a final order adopting the IC AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant largely reiterates the same contentions that she previously raised, including her contention that the CDO Director and panel members “had a discriminatory motive to exclude [her] because of [her] age and disability and their stated reasons for non-selection lacked credibility based on [her] plainly superior qualifications and eligibility for Direct Hire under several special hiring authorities.” 8 2020004825 The Agency opposes the appeal and requests that the Commission affirm its final order.4 In so arguing, the Agency emphasizes, in relevant part, that Complainant’s educational attainment and extensive work experience are not dispositive “[b]ecause neither advanced education nor extensive time in the workforce are requirements of the ISA position, and such qualifications do not necessarily make an applicant better qualified than other applicants, [Complainant’s] purported qualifications do not make her ‘plainly superior’ to the Selectees.” STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the IC 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the IC AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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 Summary Judgment We first determine whether the IC AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. 4 We note that Complainant submitted a reply in response to the Agency’s submission of its opposition brief. While we are mindful of her submission, we decline to consider it, as our regulations do not ordinarily permit parties to submit multiple briefs on appeal. See 29 C.F.R. § 1614.403(d); see also Rios-Ortega v. Dep’t of Def., EEOC Appeal No. 0120111979 (Nov. 5, 2012) (declining to address complainant’s submission of multiple briefs). 9 2020004825 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. In reviewing the IC AJ’s decision to grant the Agency’s motion for a decision without a hearing, we must draw all justifiable inferences in Complainant’s favor. Upon review, we find that the IC AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Non-Selection To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Preliminarily, we note that the AJ found that Complainant had not established a prima facie case of age discrimination because she had not shown that her qualifications were patently superior to those of the selectees. But such a showing relates to pretext. Rather, a prima facie case of age discrimination may be established by showing, as Complainant did, that she is a member of the protected age group (over 40); she applied and was at least minimally qualified for the position at issue; but was not selected in favor of a candidate outside of her protected age group or substantially younger than she is. See, e.g., Violet F. v. Dep’t of the Navy, EEOC Appeal No. 0120162046 (Dec. 22, 2017); request for recon. den., EEOC Request No. 0520180202 (May 8, 2018). Nonetheless, as we discuss below, Complainant has not established that the Agency discriminated against her on either age or disability. The established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, i.e., 10 2020004825 the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See Mica B. Dep’t of the Army, EEOC Appeal No. 0120151463 (Apr. 24, 2017) see also Grace H. v. Dep’t of the Interior, EEOC Appeal No. 2021000452 (Apr. 6, 2022) (dispensing with the prima facie analysis, as the agency articulated legitimate, nondiscriminatory reasons for its actions). As the Agency has articulated a legitimate, nondiscriminatory reason for not selecting Complainant, the Commission’s analysis will focus on whether the Agency’s actions were motivated by discrimination. Here the record shows that the CDO Director did not select Complainant because Complainant received low scores during the first round of interviews due to a mismatch between Complainant’s oral communication skills and the needs of the position. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). In non-selection cases such as this, Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dep’t. of Vet. Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). Indicators of pretext can also include, but are not limited to, 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). However, the Commission notes that agencies generally 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 (Mar. 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 arguing pretext, Complainant has repeatedly maintained that the Agency’s articulated reasons for hiring W1 and W2 were pretextual because she not only had superior educational qualifications and experience to the selectees, but she also did not lie during the application process. Complainant also emphasized that, unlike the selectees, she had a master’s degree and prior experience in processing claims of discrimination. Furthermore, Complainant argued that evidence of pretext could be seen in the CDO Director’s refusal to hire from the Schedule A Certificate, her preselection of the selectees, and her falsification of the Certificate of Eligibles. 11 2020004825 Upon review of the record, the Commission finds Complainant’s contentions regarding pretext to be unpersuasive. For the purposes of the Commission’s analysis, the Commission accepts as true Complainant’s representation that she had superior educational attainment and work experience than the selectees. However, the Commission ultimately agrees with the Agency that “[b]ecause neither advanced education nor extensive time in the workforce are requirements of the ISA position, and such qualifications do not necessarily make an applicant better qualified than other applicants, [Complainant’s] purported qualifications do not make her ‘plainly superior’ to the Selectees.” Agency’s Brief in Opposition to Appeal at 17. Furthermore, while the Commission recognizes that Complainant’s non-selection was largely based on her interview responses, the Commission ultimately finds no persuasive evidence that the Agency’s subjective assessments of Complainant’s interview responses were pretext for discrimination based on age and/or disability. Here, the record shows that the Agency identified relevant competencies for the position and asked all candidates the same questions to assess their ability to perform in each competency. The record reflects that while Complainant was qualified for the position, she ultimately was not selected because she scored significantly lower than both W1 and W2 due to her interview responses, which demonstrated a mismatch between her oral communications skills and the needs of the ISA position. See Hearing File at 213. While the Commission recognizes that the use of subjective criteria in the hiring process may offer a convenient pretext for discrimination, the Commission is disinclined to find discrimination here because the record contains clear explanations from the members of the Selection Panel as to why Complainant’s responses were inferior to the selectees’ responses. See, e.g., ROI at 00080 (noting concerns about Complainant’s ability to “demonstrate a tolerance for the complexities of interpersonal difficulties”). Complainant has not offered any evidence of discrimination, aside from asserting that the selectees for the position were substantially younger than her and did not have disabilities. However, while comparative evidence regarding the ages and disability statuses of the selectees may be sufficient to establish a prima facie case, such evidence only establishes a rebuttable presumption of discrimination rather than an automatic finding of discrimination. As Complainant has not persuasively rebutted the Agency’s assertion that her interview responses evidenced an inability to effectively handle stressful situations, the Commission ultimately finds the evidence regarding the age and disability statuses of the selectees to be insufficient to establish pretext. In finding no discrimination, the Commission is mindful of Complainant’s contention that the CDO Director preselected the selectees on August 24, 2018, even before the interview; however, the Commission finds no persuasive evidence to corroborate Complainant’s contention. While the Commission acknowledges that the ROI contains a Certificate of Eligibles with an issue date of August 24, 20185 containing the notation of “selected” next to the names of W1 and W2, the Commission notes that both the CDO Director and the Human Resources Specialist who handled the vacancy announcement averred under oath that the notations were added post- interview to the Certificate of Eligibles. See Hearing File at 99-101 and 115-16. The Commission 5 See ROI at 00086-87. 12 2020004825 also finds that the Agency responded to Complainant’s allegations of falsification and clarified that the Certificate of Eligibles that it had appended to its motion was the pre-interview certificate and not the post-interview certificate. Given the totality of the record, the Commission is persuaded that no preselection occurred. The Commission’s analysis, however, does not end there. Even if the Commission assumes, arguendo, that the CDO Director selected W1 and W2 on August 24, 2018, prior to an interview, the Commission still finds no discrimination, as the record clearly shows that both W1 and W2 each received a Final Rating of 100 in the preliminary ranking process conducted by OCHCO staff. As W1 and W2 both exceeded Complainant’s Final Rating of 98, the Commission is disinclined to find discrimination even if the Agency selected W1 and W2 on August 24, 2018. As for the Agency’s failure to select a candidate from the Schedule A Certificate, the Commission finds no persuasive evidence that the Agency’s failure to do so was based on discrimination. Indeed, the Commission notes that Complainant has not cited to any statutory or regulatory authority that required the Agency to prioritize Schedule A candidates over candidates on the Merit Promotion Certificate. Based on the foregoing, the Commission concludes that Complainant cannot prevail on her complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency’s final order. 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). 13 2020004825 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). 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 14 2020004825 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: /s/ Shelley E. Kahn ______________________________ Shelley E. Kahn’s signature Shelley E. Kahn Acting Executive Officer Executive Secretariat October 17, 2022 __________________ Date