[Redacted], Vickie T., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.Download PDFEqual Employment Opportunity CommissionSep 29, 2021Appeal No. 2021001896 (E.E.O.C. Sep. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickie T.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021001896 Agency No. DLAC-20-0098 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 Agency’s December 28, 2020, final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Human Resources Specialist, GS-13, at the Agency’s DLA Human Resources Services, Columbus, Ohio, a component of DLA Human Resources (J1) in Fort Belvoir, Virginia. On January 28, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on sex (female) and age (55) when Complainant was not selected for a Supervisory Human Resources Specialist (Informative Systems), GS-0201-14, position (Agency vacancy announcement DLAHRSvcs-19-10584190-MP) on October 1, 2019. 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. 2021001896 2 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On December 28, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues that management tailored the interview questions and selection criteria to favor the Selectee who Complainant asserts was younger (under 40) and less qualified that Complainant. Complainant further asserts that the position vacancy was incorrectly classified as a GS-0201 position and should have been classified as a GS-2210 position, given the emphasis on the development of automated systems. Complainant asserts that direct Information Technology efforts belong to the GS-2210 Information Technology series positions and not the Human Resources Office. ANALYSIS AND FINDINGS 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 complainant to prevail, she 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). Our review of the record supports that the management witnesses for the Agency articulated legitimate, non-discriminatory reasons for Complainant’s non-selection. 2021001896 3 Complainant and the Selectee (male, under 40) were the only two candidates referred for interviews for the Human Resources Specialist (Information Systems), GS-0201-14 position. The selection process involved a two-member interview panel consisting of the Selecting Official (SO) and one other panel member (PM1), who asked the same set of questions of each candidate. Following interviews, the interview panel recommended to the HR System Director (HR Director) that the Selectee be chosen for the position. The HR Director approved the recommendation, and then SO made the selection. The position was developed in response to lead a newly created division - the Innovations Team - which was assigned with creating new technologies aimed at increasing efficiency in J1. Specifically, SO explained that the position would help eliminate the current manual and labor- intensive processes by developing and using new technology. Consequently, PM1 stated that “innovation” was the focus for the new position and that the Agency was looking for a “forward thinker.” Additionally, the vacancy announcement states that the incumbent “plans, organizes, and directs the actives of subordinate HR specialists (Information Systems) in the design, development, and implementation of various automated solutions for DLA Human Resources and its customers.” Regarding the interview questions, SO explained that she developed most of the questions and sought advice from PM1 for the technical questions. Both SO and PMI indicated that the questions were used to help them identify the skillset of the candidate related to the mission critical capabilities of the position, and the HR Director further clarified that the interview questions were based on Behavior Based Interviewing guidelines. The SO and PM1 noted that the Selectee presented as having the necessary level of IT knowledge required for the position. PM1 stated that the Selectee had a “strong technical background and was well versed in DLA operations.” The PM1 stated that, in contrast, Complainant used and referenced technology that was not as extensive and was older technology. Similarly, SO indicated that the Selectee had more IT knowledge, he was already completing very similar duties in his current position that were required in the instant position, he maintained current IT certifications at his own expense even though those certifications were not require for an IT certification, and the Selectee displayed a desire to be knowledgeable of the latest technology. However, SO indicated that Complainant did not indicate that she had the same level of IT knowledge and she could not articulate how she would be able to supervise a team of employees who may have more technical knowledge than she would or how she would be able to mitigate her inability to develop applications along with her team. Regarding the position classification, the Supervisory Human Resources Specialist (SHRS) was responsible for classifying the position as a GS-0201 series position. SHRS noted a GS 14 was the suggested grade for the position. However, SHRS explained that a GS-14 would not be approved if the standard 0201 classification standard was used. As a result, SHRS used the 0201 classification with a parenthetical of (Information Systems) to indicate that the candidate requires a specific skill, in this case both information system and human resources knowledge, to perform the role successfully. 2021001896 4 SHRS further noted that the position could not be classified as a GS-2210 series position, which is an Information Technology classification standard which would result in the position being assigned to J6 instead of J1. SHRS explained that Human Resources did not have the authority to assign J6 Information Technology responsibilities without approval from J6. However, SHRS clarified that the position at issue was responsible for serving as the HR liaison to the J6 Information Technology group which necessitated inclusion of the Information Technology parenthetical with the GS-0201 series classification. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex or age. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021001896 5 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. 2021001896 6 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 September 29, 2021 Date Copy with citationCopy as parenthetical citation