[Redacted], Kasi J., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2021002315 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kasi J.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002315 Hearing No. 420-2020-00325X Agency No. ARREDSTON20JAN00115 DECISION On March 7, 2021, 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 March 2, 2021 final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Logistics Management Specialist, GS-0346-13, at the Agency’s U.S. Aviation and Missile Command (AMCOM) Security Assistance Management Directorate (SAMD) in Huntsville, Alabama. On March 18, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), and age (58) when in mid- December 2019, Complainant learned she was not selected for an interview which led to the January 6, 2020 official notification that she was not selected for the position of Supervisory 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. 2021002315 2 Logistics Management Specialist, NH-0246-04, vacancy announcement number SCBK199866289380. The Agency accepted the foregoing claim and conducted an investigation into the matter. The investigation showed Complainant was an African American female, aged 58 during the period at issue. The Agency sought to hire two Supervisory Logistics Management Specialist, NH- 0346-04, within the AMCOM SAMD Agency at Redstone Arsenal, Alabama. This was advertised under vacancy announcement SCBK199866289380, which opened on September 11, 2019 and closed on September 25, 2019 (“the position”). Complainant applied for the position through USAJobs. She was one of 58 applicants for the position. 10 of the applicants were selected for interviews (although one declined) based on having the maximum possible resume score, but Complainant was not one of them. Ultimately, two selections were made, an African American female, YOB 1980, and a Latinx male, YOB 1986. The selections were based on composite scores for both resume and interviews. The Division Chief (Caucasian male, YOB 1961) was the selecting official. He appointed two panels, a resume review panel and an interview panel, to assist with the selection process. Panel members were selected based on diversity requirements outlined in the AMCOM Panel Validation form, which was signed by AMCOM G1. The resume review panel consisted of Panelist 1 (Caucasian male, YOB 1958), Panelist 2 (Caucasian female, YOB 1951), and Panelist 3 (African American male. YOB 1963). The panelists were assigned to independently review the resumes of the 58 applicants and score them based on criteria provided by the Division Chief. Each panel member was provided copies of resumes for all referrals, scoring criteria, and scoring matrix to record scores. Resumes were scored only based on what was contained in the resume. All three panelists scored Complainant’s resume 3 out of a possible 5 points. Her resume was ranked 31 out of the 58 applicants. Complainant was not selected for an interview because she did not receive the maximum resume score. The panelists all testified they did not consider race, sex, or age. Complainant testified that she is more experienced than either of the selectees. She states she is more qualified than the group of interviewees because she has more training, education, and experience. She testified that she should have been selected for the position because she has over 30 years of Logistics experiences, she has been a Case Manager at SAMD for 9 years, she has completed all the recommended and mandatory training to be a GS-14 within SAMD, and she had served 120 days in the position. She also stated that many with SAMD have been selected for GS-14 Supervisor Logistics Management positions with far less experience/training than she has. She stated that the selectees have no more than 10 years of experience and 15+ years of experience, while she has 30 years of experience. Complainant testified she was told that her resume did not include enough financial experience information. However, she testified that her leadership, financial, and Program Management Review (PMR) experience was not properly considered by the resume/selection panel. She testified that the Division Chief was aware of her race and sex through visual observation, although she was not sure if he was aware of her age. 2021002315 3 She testified that most of the promotions in SAMD have been individuals between the ages of 35-40 and it was rare to see a promotion of someone over age 50. She believes her race was an issue in her not being interviewed because she had always been told that Defense Security Assistance Management Systems (DSAMS) is the most important element of a Case Manager’s duties, but during selections, “they” focus on other things. She noted SAMD has a poor record of promoting females. 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 timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s January 29, 2021, motion for a decision without a hearing and issued a decision without a hearing on February 24, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends there is a pattern of making it hard for African American females over 50 to be promoted. She stated that white men get promoted at a higher rate than others. She stated that also others get help with selections, such as being provided interview information. She stated it has been impossible to get a promotion within SAMD event though she has taken all the recommended training and classes to be succeed and be competitive. She contends that it is a hard to believe that a selectee with less than 10 years of experience beat out other applicants with far more time in grade and experience. The Agency contends on appeal that Complainant disagrees with her non-selection, but she cannot establish that it was discriminatory or pretextual. The Agency notes Complainant did not cite to the investigative record or any evidence and her statements are based entirely on her conjecture and opinion. She did not respond to the Agency’s Motion for Summary Judgment, and she has failed to submit any new and material evidence in connection with her appeal that was not readily available when the previous decision was issued or which present a basis to reverse the final agency decision. ANALYSIS AND FINDINGS 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. 2021002315 4 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 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. Here, Complainant 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. Complainant has alleged that her non-selection for an interview was motivated by her race, sex, and age. A claim of disparate treatment, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 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 Center v. Hicks, 509 U.S. 502 (1993). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). Here, even assuming arguendo that Complainant established a prima facie case, her claim still fails, as we find the responsible Agency official articulated a legitimate, nondiscriminatory reason for the disputed actions. Complainant’s resume did not reflect enough of the scoring criteria to earn the maximum possible points (5 out of 5). Instead her resume was scored a 3 out of 5 by all three panelists. Therefore, she was not selected for an interview. The ultimate vacancy selections were determined by a composite score of resume review plus interview scoring. 2021002315 5 Complainant failed to establish that the Agency's articulated reason for Complainant's non- selection was pretext for discrimination. The complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant has not produced any evidence beyond her speculative beliefs to support her claim that the Agency was motivated by discriminatory animus. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). The panelists who scored the resumes testified they did not consider age, race, or sex. The selecting official, Division Chief, denied that these were factors in his decision. We also note that one of the selectees, while younger than Complainant, is the same race and sex as Complainant. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Complainant has asserted that she had greater experience than either of the selectees. However, all candidates were scored based only on the information present in their resumes, and Complainant acknowledges that one selectee has “less than 10 years” experience and the other may have “15 plus years” experience. While Complainant asserts that she has 30 years of experience, both selectees had significant experience and she has not shown that her experience is plainly superior to theirs. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Therefore, we find Complainant has failed to establish her claim of disability discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 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 2021002315 6 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). 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. 2021002315 7 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 April 21, 2022 Date