[Redacted], Karol K., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2020004532 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karol K.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020004532 Hearing No. 530-2014-020197X Agency No. 7MIR12001 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the June 29, 2020, decision of an EEOC Administrative Judge 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.2 BACKGROUND During the period at issue, Complainant worked as a Security Specialist, GG-9, at the Agency’s 707 Force Support Squadron Security Office in Fort Meade, Maryland. On December 12, 2014, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race (African-American) when, on or about July 2, 2012, the 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 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the Administrative Judge’s decision is the final Agency action. 2020004532 2 Lieutenant Colonel (Selecting Official/Complainant’s third level supervisor) and/or any other hiring official, failed to select Complainant for the position of Security Specialist, GG-0080-11. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Following a hearing where six witnesses, including Complainant, testified, the AJ issued a decision on June 29, 2020, finding no discrimination. In sum, the AJ determined that the Agency had articulated legitimate, non-discriminatory reasons for not selecting Complainant for the position at issue. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency discriminated against her based on her race when it failed to select her for the position at issue. Complainant argues, in pertinent part, that she was more qualified than the Selectee because she had more security experience than the Selectee. ANALYSIS AND FINDINGS Preliminary Matter As an initial matter, we acknowledge Complainant’s additional arguments on appeal disputing the AJ’s decision to allow witnesses to testify via Skype instead of in-person. We find that the AJ’s allowance of witnesses testifying via Skype was reasonable in this case. Although Complainant, the AJ, and Agency counsel were physically located in Maryland, the Selecting Official was physically located in Germany, a significant distance away. Additionally, we note that the AJ allowed one of Complainant’s witnesses to participate in the hearing via Skype. Given these circumstances, we find the AJ did not commit any error by conducting the hearing virtually and we note that the AJ extended this option to both parties. Merits of the Claim Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 2020004532 3 An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). This 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, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the AJ properly determined that management witnesses provided legitimate non- discriminatory reasons for not selecting Complainant for the Security Specialist position. The record indicates that the Air Force Personnel Center (AFPC) determined that there were 111 eligible candidates for the position at issue. The Selecting Official explained that she narrowed this list from 111 candidates to eleven based on a list of criteria which included commuting distance (proximity), military affiliation/understanding (especially National Security Agency/NSA experience), customer service experience, personnel security experience, and leadership experience. The Selecting Official then reduced the candidate list from eleven to five individuals by considering the candidates’ personal knowledge of experience and customer service. Complainant was one of the five candidates, and each of these candidates received a telephone interview. The Selecting Official said that the interview panel was comprised of herself and Deputy Commander, and together, they asked all candidates the same questions. 2020004532 4 The Selecting Official explained that they focused on the same criteria (proximity, military affiliation/understanding, and customer service, personal security, and leadership experience) used to initially narrow the candidate list. The Selecting Official explained that she chose the Selectee (White) because he lived locally, had a superb understanding of the military, had 20 years of service, had outstanding customer service which the Selecting Officially had personally observed since June 2011, had completed multiple online security classes, and had extensive leadership experience. In contrast, the Selecting Official stated that she did not select Complainant based on the Selecting Official’s previous interaction with Complainant and based on the negative feedback she received about Complainant. During the hearing, the Selecting Official acknowledged that Complainant had more security experience3 than the Selectee, who only had a few months of security experience. However, the Selecting Official noted that the Selectee had worked for the NSA which the Selecting Official determined to be valuable experience, because anyone entering the NSA required Top Security Clearance and likely polygraphs. The Selecting Official also testified that the Selectee took additional security training in December 2011 or January 2012. Additionally, the record supports that the Selectee served as the Internal Chief for the security office while that position was vacant. The Selecting Official further clarified that she looked at the “overall” background of each candidate and did not focus on just one factor. Consequently, Complainant’s security experience alone was not sufficient to determine her to be a more qualified candidate than the Selectee. The Deputy Commander testified in her affidavit that the Selectee was also more qualified in teamwork and leadership than Complainant. Additionally, the Selecting Official explained that she had previously observed Complainant’s poor customer service. Specifically, the Selecting Official noted that on multiple occasions she observed Complainant failing to acknowledge an individual’s presence when entering the Security Office even though her position required that she greet customers entering the office. The Selecting Official also indicated that she had received complaints about Complainant’s poor customer service.4 Regarding Complainant’s argument that the Selectee falsified his resume, the Selecting Official acknowledged that the Selectee indicated on his resume that he was under the Selecting Official’s supervision in May 2011, even though the Selecting Official did not take command of the 707 FSS until June 2011. Nevertheless, the Selecting Official explained that the error could have been an honest mistake and indicated that the AFPC was responsible for certifying and determining the candidates’ eligibility. 3 Complainant testified that she had seven years of experience in the security field, and she performed the duties of the position at issue over a seven-month period while the position was vacant. 4 The record includes a copy of Complainant’s mid-year review covering October 1, 2011 through September 2012 indicating the Deputy Commander recommended Complainant “work on her verbal and written communication skills to ensure professional intentions.” 2020004532 5 After careful consideration of the record, we conclude that neither during the investigation nor at the hearing has Complainant proven, by a preponderance of the evidence, that these proffered reasons for not selecting Complainant were a pretext for unlawful discrimination based on Complainant’s race. CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED. 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). 2020004532 6 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 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 December 9, 2021 Date