[Redacted], Matilde M., 1 Complainant,v.Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2019005956 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilde M.,1 Complainant, v. Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency. Appeal No. 2019005956 Hearing Nos. 430-2015-00184X 430-2018-00103X Agency Nos. DON14-62793-02299 DON17-62793-02088 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 16, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her race or sex, or in reprisal for protected EEO activity, when it relieved her of her duties and did not select her for two vacancies. 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. 2019005956 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Assurance Manager (IAM) (GS-12) at the Agency’s Security Department, Supervisor of Shipbuilding, Conversion and Repair in Newport News, Virginia. Complainant was appointed to her IAM position on November 19, 2012. Report of Investigation (ROI) 1 at 406.2 Complainant stated that in January 2014, the Headquarters Inspector General’s Office conducted an Information Assurance (IA) audit, which the Information Technology (IT) department failed. Complainant stated that her IT department failed another audit in May 2014, and that she was informed that the failure was her fault. ROI 1 at 352-3. On May 15, 2014, Complainant’s IAM appointment was rescinded. ROI 1 at 439. On March 14, 2014, the Agency opened a vacancy announcement for an IT Specialist (GS-13), under vacancy announcement number NW42210-13-10701474E768920. ROI 1 at 242-7. Complainant submitted an application for the position. ROI 1 at 259-73. On June 26, 2014, Complainant was informed that she was not selected for the position. ROI 1 at 410-13. Complainant stated that after the initial selectee (S1) (White, male, unknown EEO activity) left the position, the selecting official (SO1) (White, male) informed her on November 3, 2014, that he “name selected” another selectee (S2) (White, male, unknown EEO activity). ROI 1 at 359. On January 5, 2017, the Agency opened a vacancy announcement for an IT Specialist (GS-13), under vacancy announcement number NW72210-13-1872556K0529500. The selectee would serve as an Information Systems Security Manager (ISSM). ROI 2 at 208-12. Complainant submitted an application for the position, but she was not interviewed. ROI 2 at 214-31, 104. Complainant stated that on April 3, 2017, her first-line supervisor, who was the selecting official (SO2) (White, male), informed her that she was not selected for the position, and that the selectee (S3) (White, male, unknown EEO activity) would arrive the next day. ROI 2 at 105. On April 8, 2017, Complainant received an email notifying her that she was not selected for the position. ROI 2 at 339-41. EEO Complaints On June 24, 2014, Complainant filed an EEO complaint (DON14-62793-02299) alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female), and in reprisal for prior protected EEO activity when: 1. on May 15, 2014, Complainant was relieved of her IAM responsibilities; 2. on June 26, 2014, Complainant was not selected for the position as an IT Specialist (GS-13); and 2 ROI 1 refers to the investigative file for complaint number DON14-62793-02299, and ROI 2 refers to the investigative file for complaint number DON17-62793-02088. 2019005956 3 3. on November 3, 2014, Complainant was informed that another individual was “name selected” for the IT Specialist position at issue. On May 9, 2017, Complainant filed another EEO complaint (DON17-62793-02088) alleging that the Agency discriminated against her on the bases of race and sex, and in reprisal for prior protected EEO activity when: 4. on April 3, 2017, SO2 informed Complainant that she was not selected for the ISSM/IAM (GS-13) position, and Complainant received the official notification of her non-selection on April 8, 2017; and 5. on November 6, 2016, and January 17, 2017, Complainant was not afforded an opportunity to serve in an acting ISSM/IAM position. On May 25, 2017, the Agency informed Complainant that it was not accepting claim 5 because it was untimely.3 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. On February 28, 2018, the Agency filed a Motion to Consolidate the two complaints, which was granted on March 21, 2018. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s August 24, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 31, 2019. As an initial matter, the AJ found that, when viewing the evidence in the light most favorable to Complainant, there were no genuine issues of material fact. The AJ noted that the Agency provided a detailed factual summary, which she adopted. The AJ then found that Complainant did not allege sufficient evidence to support her claims of discrimination and reprisal. The AJ determined that Complainant did not establish a prima facie case of discrimination; the Agency provided legitimate, nondiscriminatory reasons for their actions; and Complainant was unable to rebut the Agency’s proffered reasons. 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 and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissal of this claim; as such, we will not address it in the instant decision. 2019005956 4 CONTENTIONS ON APPEAL Complainant’s contentions Through her attorney, Complainant argues that the AJ erred when she found the case appropriate for summary judgment. Complainant states that the AJ erred in overlooking facts and that there are credibility issues. Complainant also argues that the AJ erred when she found that Complainant did not establish a prima facie case of discrimination. Complainant asserts that all of the selectees were White males with no EEO activity, and thus, were outside of her protected categories. Complainant argues that the Agency did not set forth reasons for her non-selection for claim 4. Complainant states that the panelists relied solely on their scores, without providing any explanations for how they reached the scores. Complainant asserts that the Commission found that an agency fails to meet its burden of providing a legitimate, nondiscriminatory reason when it does not provide specifics to explain how the scores are derived in David T. v. United States Postal Service, EEOC Appeal No. 2019001172 (April 9, 2019) and Felisha A. v. Department of Homeland Security, EEOC Appeal No. 0120162314 (September 27, 2018). Complainant also states that the Commission found discrimination when an agency created a scoring matrix after the interview process in Goblirsch-Erickson v. United States Postal Service, EEOC Appeal No. 0120110390 (March 31, 2011). Complainant also argues that she established sufficient evidence of pretext. Complainant states that the panelists were instructed to interview the five top scoring candidates, and that after one of the candidates (C1) was found ineligible for the position, Complainant’s score placed her in the top five. Complainant asserts that the Agency provided no legitimate rationale for not interviewing her. Complainant also argues that the Commission found that an agency’s deviations from standard procedures, without explanation or justification, can be evidence of pretext; and that SO2 acknowledged that he was given instructions to save all notes, and that a panelist stated that he turned them in to SO2, who “suspiciously” claimed he never received any notes. In addition, Complainant states that SO2’s “apparent destruction” of the panelists’ notes is evidence of pretext. Complainant asserts that she was the plainly superior candidate for both positions. Complainant states that she carried out the duties of an IAM; received overwhelmingly positive performance evaluations; and was acknowledged by her supervisors as an expert in the field of IA. Complainant also argues that the Agency cannot rely on the results of the audits as reasons for her non-selections because the Agency failed to apply uniform grading criteria and added a criterion, outside of the crediting plan, that was only applied to Complainant. Regarding claim 1, Complainant states that it was undisputed that the command failed the audits, but the “blame” for the failures is in dispute. Complainant asserts that SO1 tasked Complainant and an IT Manager (ITM) with working together to identify the root causes of the failures, and that ITM was not removed from his duties, despite the audit failures. Complainant requests that the Commission reverse the Agency’s final order and remand her complaint for a hearing. 2019005956 5 Agency’s contentions The Agency argues that Complainant cannot show that she was treated differently from similarly situated employees outside her protected classes for the non-selections because Complainant did not score high enough on her resume to advance to the interview portion of the selection process. The Agency states that even if Complainant could establish a prima facie case of discrimination, she cannot show that she was plainly superior, as compared to the selected applicants. The Agency also argues that prior failure and removal from a similar lower-graded position, as demonstrated by the unsatisfactory audit results, is a legitimate non-discriminatory reason to not select a candidate for a higher-graded version of the position. The Agency asserts that Complainant is not a credible witness and did not provide objective evidence to meet her burden. For example, Complainant stated that S1 was a “white male” and then later testified that he was a “non-white male.” The Agency also notes that Complainant made unsubstantiated allegations that SO2 destroyed the panelists’ notes, and that the panelists’ scoring sheets were included in the record. Regarding C1, the Agency states that Complainant neglected to mention that he appeared on the list of best qualified candidates, and that it was only after all the interviews had been completed that the Human Resources Office notified SO2 that C1 did not have sufficient time in grade and had been put on the certificate of eligibles by mistake. The Agency requests that the Commission affirm its final order adopting the AJ’s decision. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the 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 AJ’s, and the 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”). 2019005956 6 Decision without a Hearing We determine whether the 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. 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. 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 without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that the AJ erred in “overlooking facts,” and that there are credibility issues. For example, Complainant asserts that the “blame” for the audit failures is in dispute; SO2 apparently destroyed the panelists’ notes; and the Agency failed to apply uniform grading criteria when it added a criterion, outside of the crediting plan, that was only applied to Complainant. We find that Complainant did not show a genuine dispute of any material facts. For claim 1, Complainant argues that the “blame” for the audit failures is in dispute. However, we find that the “blame” regarding the audit failures is not a material fact because Complainant and ITM were not similarly situated. The record shows that ITM was a GS-13 IT Manager, while Complainant was a GS-12 IT Specialist. ROI 1 at 590, 106. Among other things, to be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). In this case, Complainant and ITM held different positions, at different grade levels; as such, we find that any “blame” for the audit failures is not material because it was not expected that Complainant and ITM would be treated in the same manner because they were not similarly situated. Complainant argues that the Agency added a criterion that only applied to her when it used the results of the audits as a reason for her non-selections. However, the record does not support Complainant’s assertion that the audit failures were a determining factor in her non-selections. For claim 2, one of the panelists stated that he shared with the other panelists that Complainant was relieved of her duties; however, this was after the final results of the resume review process. 2019005956 7 ROI 1 at 604. The record shows that no other selection official or panel member considered the audit failures when evaluating Complainant’s applications for the two vacancies. As such, we find that Complainant did not establish a genuine dispute regarding the consideration of the audit results for her non-selections. Complainant alleges the “apparent destruction” of the panelists notes by SO2. Complainant states that a panelist stated that he collected the notes and gave them to SO2, who “suspiciously” stated that he never received the notes. However, SO2 stated that he asked the lead panelist for the notes, who responded that he thought he already provided them to SO2, but that they would have been shredded. ROI 2 at 314. While we note that there is confusion regarding the notes, there is no evidence that SO2 intentionally destroyed the panelists’ notes. 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 Security, 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). We also find that Complainant did not establish a need for a credibility assessment of SO2 with only bare assertions that SO2 was suspicious and had destroyed notes. Complainant also argues that the AJ erred when she found that Complainant did not establish a prima facie case of discrimination for the non-selections because the selectees were outside of her protected categories. However, we find that this is not material because we assume a prima facie case of discrimination based on Complainant’s race and sex, and in reprisal for protected EEO activity, in our analysis below. Accordingly, we find that Complainant did not show genuine disputes of material facts or a need for a credibility assessment, and that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). 2019005956 8 We find that Complainant did not establish a prima facie case of discrimination based on her race or sex for claim 1. Complainant may establish a prima facie case of discrimination by providing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted). As discussed above, we found that Complainant did not show that ITM was a similarly situated individual. In addition, Complainant did not show that the circumstances surrounding the rescission of her IAM responsibilities gave rise to an inference of discrimination based on her race or sex. We also find that Complainant did not establish a prima facie case of retaliation for claim 1. A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). On November 17, 2014, the Agency amended Complainant’s complaint based on her request to include a basis of retaliation due to her current EEO complaint. The record shows that Complainant initiated her EEO complaint on May 20, 2014, which was after the Agency’s decision to rescind her IAM appointment on May 15, 2014. ROI 1 at 58, 3. As such, we find that Complainant did not establish a prima facie case of reprisal for claim 1. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and sex, and in reprisal for protected EEO activity for claims 2-4, we find that the Agency proffered legitimate, nondiscriminatory reasons for their actions. For claim 2, SO1 stated that he selected S1 because he was the best qualified, out of the 31 candidates, based on the recommendation of the selection panel. ROI 1 at 581. The panelists stated that they initially reviewed and scored the resumes and then discussed the scores. The panelists then decided to interview the top six candidates and Complainant was not interviewed because her score was below the threshold. The panelists recommended S1’s selection because he had the highest combined score from his resume and interview. ROI 1 at 540-1, 550-2, 559-60. In addition, SO1 stated that he informed Complainant that the “weaker areas” of her resume were in Planning and Organization, and Communication. For example, SO1 stated that Complainant’s resume did not show her ability or experience in fostering commitment and team spirit, or in developing and presenting effective presentations. ROI 1 at 581. Regarding claim 3, SO1 stated that after S1 left federal service, the certificate had expired but since the other candidates were already federal employees, they were eligible to be “name selected.” SO1 noted that opening a new vacancy would have taken too much time and he needed someone immediately. SO1 stated that he contacted the next two candidates, who declined the position. 2019005956 9 SO1 stated that since he was out of town and unable to access the resumes, he asked ITM and an Acting Activity Chief Information Manager to review the next two candidates’ resumes and make a recommendation. SO1 stated that they recommended S3, and that SO1 selected him, noting that S3 was a “fully qualified IAM” and had supervisory experience. ROI 1 at 570-1, 582. For claim 4, SO2 stated that he made the selection based on the recommendation of the panel. SO2 noted that Complainant’s scores in the categories of Planning and Organization, and Supervision, were “significantly lower” than the other categories. SO2 stated that the panelists scored the resumes and interviewed the top five scoring applicants. One panelist stated that Complainant’s resume score was not in the top five, and another panelist noted that S3 was rated higher than Complainant in the supervisory and specialized experiences categories. ROI 2 at 159, 154-5, 174, 187. Complainant argues that the Agency did not set forth reasons for her non-selection for claim 4. Complainant states that the panelists relied solely on their scores, without providing any explanations for how they reached the scores; that SO2 stated that he relied upon the panelists’ scores, without an explanation of how the selectee’s qualifications were better than Complainant’s qualifications; and that the Agency failed to provide the panelists’ notes. While we note that SO2 only stated that he based his decision on the panelists’ recommendation, he added that Complainant’s scores were low for the categories of Planning and Organization, and Supervision. In addition, the record includes SO2’s instructions to the panelists on how to score the resumes. SO2 instructed the panelists to determine the scores, on a scale of 0-5, with 5 as the highest score, for each category of the knowledge, skills, and abilities (KSA). ROI 2 at 299-300, 329. The record also contains the panelists’ scores for the applicants, which show that Complainant ranked sixth, with a total score of 21.33, while S3 received a total score of 24.67. ROI 2 at 301-2. Complainant asserts that the Commission found that an agency fails to meet its burden of providing a legitimate, nondiscriminatory reason when it does not provide specifics to explain how the scores are derived in David T., supra and Felisha A., supra. However, we note that in David T., the record did not include the “requirements” that were scored and that individuals were forwarded for consideration, despite receiving lower scores than the complainant. Here, the record shows the six KSAs that were scored, and that the panelists’ statements that only the top five scorers were interviewed were consistent with the scores. In Felisha A., the record did not even contain the scores, while the record in the instant case contained the applicants’ scores. Complainant also argues that the Commission found discrimination when an agency created a scoring matrix after the interview process in Goblirsch-Erickson, supra; however, there is no indication that the scoring matrix was created after the interviews in this case. As such, we find that the Agency provided legitimate, nondiscriminatory reasons for not advancing Complainant to the interview stage of the selection process for claim 4. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 2019005956 10 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant stated that pretext was established because the panelists were instructed to interview the five top scoring candidates, and that after C1 was found ineligible for the position, Complainant’s score placed her in the top five, and that the Agency did not provide a legitimate rationale for not interviewing her. However, the record shows that SO2 learned that C1 was not eligible for the position after the interviews were conducted. Specifically, a Human Resources Specialist notified SO2 about C1’s ineligibility on February 28, 2017, and a panelist noted that the interviews were conducted during the first two weeks of February. ROI 2 at 313, 322, 192. Complainant also argued that pretext was shown when SO2 failed to follow Agency policy in providing the panelists’ notes and due to his “apparent destruction” of the notes. However, as discussed above, we found that there was confusion because a panelist thought he had submitted the notes to SO2, who stated that he did not receive them. The record shows that SO2 attempted to obtain the panelists’ notes and that he did not intentionally fail to follow the Agency’s policy to provide the notes. ROI 2 at 314. In addition, we found that Complainant did not provide evidence showing that SO2 destroyed the panelists’ notes. As such, we find that Complainant did not establish that SO2’s explanations were not worthy of belief. In addition, in a non-selection case, pretext may be found where the complainant’s qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant states that she was the plainly superior candidate for both positions because she carried out the duties of an IAM; received overwhelmingly positive performance evaluations; and was acknowledged by her supervisors as an expert in the field of IA. However, we find that even if Complainant excelled in her IAM duties, that does not mean that she was a plainly superior candidate for the vacant positions. Complainant needs to show how her skills and experiences meet the specific qualifications from the vacancy announcements. In addition, we are not persuaded by Complainant’s additional arguments in her testimony that she possessed plainly superior qualifications. For claim 2, Complainant stated that she should have been selected because she “did the job” for eight and a half years, and that S1’s resume was “general” and did not provide details of his experiences. ROI 1 at 357. However, we note that Complainant only made a vague statement that she “did the job,” without specifying how her qualifications were superior. In addition, S1’s resume provided details of his experiences; for example, S1 provided examples of his communications experience with weekly briefings and interactions with the contracting officer representative. ROI 1 at 274. Regarding claim 3, Complainant stated that S2 did not have IA experience, and was “more IT” and “technically inclined,” while Complainant had a security background and “can certify a command to operate their network systems which requires interpretation of policies and procedures and information assurance controls.” 2019005956 11 ROI 1 at 359. However, S2’s resume shows that he had IA experience from his position with the Navy Cyber Defense Operations where he interpreted and applied IA policies, practices and procedures; and that S2 previously held a position as an IT Security Manager. ROI 1 at 282. Accordingly, we find that Complainant did not establish that she was the plainly superior candidate for claims 2 or 3. For claim 4, Complainant listed her experiences in support of her argument that she was the plainly superior candidate, such as establishing policies. ROI 2 at 106. However, the vacancy announcement shows that this position was supervisory and Complainant’s resume does not specify supervisory duties under her listed positions. ROI 2 at 210, 214-26. To compare, S3’s resume highlighted 20 years of supervisory experience, including supervising civilian employees in his most recent position. ROI 2 at 233-4. As such, we find that Complainant did not establish that she possessed plainly superior qualifications for claim 4. The Commission has previously found that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC Appeal No. 0120110338 (March 23, 2011), citing Texas Dept. of Community Affairs, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). Further, we note that in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Texas Dept. of Community Affairs, 450 U.S. at 259. We find that the record does not contain any evidence of unlawful motivation for the Agency’s selections. Notably, we find that the Agency had EEO personnel involved in the selection processes, and that both stated that there was no evidence of bias based on Complainant’s protected categories. ROI 1 at 603, ROI 2 at 194. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her race or sex, or in reprisal for protected EEO activity for claims 2-4. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her race or sex, or in reprisal for protected EEO activity when it relieved her of her duties and did not select her for two vacancies. 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 2019005956 12 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. 2019005956 13 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 January 11, 2021 Date