Sharon B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120172985 (E.E.O.C. Nov. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sharon B.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172985

Hearing No. 510-2016-00017X

Agency No. ARCEHECSA15JAN00105

DECISION

On August 31, 2017, 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
July 28, 2017, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Public Affairs
Specialist, GS-1035-12, at the Agency’s Corporate Communications Office, USACE facility, in
Jacksonville, Florida.

On March 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when, on November 24, 2014, she was not selected for
the position of Chief of Corporate Communications (Supervisory Public Affairs Specialist, GS-
1035-13).

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.
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The pertinent record reveals the following facts. Complainant was employed as a GS-1035-12,
Public Affairs Specialist for the Jacksonville District in its Corporate Communications Office.
She has 35 years of experience in public affairs and received exceptional performance
evaluations.

On August 6, 2014, the Agency announced a vacancy for a Supervisory Public Affairs Specialist,
GS-1035-13, position to fill the position of Chief of the Jacksonville District Corporate
Communications Office. Complainant applied. She was deemed qualified and was among the
thirty-eight candidates, who were referred for consideration.

The Agency convened a panel of five to review the applications. The panel consisted of four men
and one woman. The Agency acknowledged that it considered the demographic diversity in
establishing the Panel.

The Agency delineated the selection criterion for the position, which included: 1) experience in
the functional area of the position; 2) the scope of experience which reflect the range of
knowledge and experience for executing the assigned responsibilities; 3) leadership and
managerial experience; and 4) self-development activities that strengthen overall qualifications.

The Agency did not have a policy regarding the weight to be given to any one aspect of the
process. There was no point system or scoring process utilized to rank the candidates
numerically. Each panel member ranked the candidate’ resumes based on their individual
assessment. Following the resume rankings, the top five candidates were offered interviews.
Complainant was one of the top five interviewed. Panel members had notes of their observations
and conclusions from the interviews. Each panel member took notes on the interview and the
notes are included in the record. Complainant’s interview was deemed “average.”

The panel scored the selectee higher than Complainant. He spent 18 years in Europe doing those
programs, but he worked for the VA for only eight months. The selectee was a GS-13 at the time
of his selectee and had supervisory experience. The selectee had extensive knowledge of the
internal programs within the Department of Defense.

Each panel member testified that they were impressed with the selectee and, following the
interviews, four of the panel members panel ranked him as the top candidate. The fifth panelist
ranked the selectee as the second highest candidate. None recommended Complainant, whose
interview was deemed, “average.” The panel recommended the selectee’s name to the selecting
official. There was no evidence of any gender animus in the decision.

The former Commander of the Jacksonville District (male) served as the selecting official (S1).
The selecting official averred that he selected the candidate recommended by the panel. Based on
the interview results, it was determined that the selectee had proven technical ability, leadership
skills, and possessed the necessary effective communication skills.

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Complainant averred that her experience and knowledge base was much greater than the
selectee’s.

Complainant averred that, during the summer of 2014, she was told by two district members,
and others who implied, that the Agency was going to select a named male candidate for the
Chief’s position. In addition, Complainant averred that, of the five individuals selected to be
interviewed, the selectee had been rated the lowest on the resume ranking. When Complainant
asked how the decision was made and who made it, Complainant was told that the selection was
based upon the resumes and leadership input. During the selection process, Complainant
contended that the Agency admitted that the panel members were selected based on their race
and gender.

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,
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. The Agency referenced the specific reasons provided by the panel in
support of its interview process and recommendation. The Agency reasoned that it made its
decision to select the selectee due to his supervisory experience and due to the fact that he
communicated better in the interview and communication skill was viewed as a critical skill for
the Chief of a Corporate Communications Office.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to properly articulate a legitimate non-
discriminatory reason “apart from its statement that it selected the best qualified candidate.”
Complainant argues that her qualifications were plainly superior to the selectee’s and, based on
her superior qualifications alone, a decision should have been made in her favor. She also
maintains that the decision itself was based on an arbitrary subjective evaluation not backed up
with any objective evidence or written documentation.

In response, the Agency maintains that it correctly determined that management made its
selection for legitimate, non-discriminatory reasons and there is no evidence to show pretext.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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 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
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Even assuming that Complainant established the elements of her prima facie claim, we find that
the Agency met its burden of production,2 by articulating a legitimate, non-discriminatory reason
for its action. The record shows she was not selected based on the panel recommendation, which
was based on specific interview observations that were set forth in the record, and the selecting
official’s belief that the selectee had broader supervisory experience and communication skills
relevant to the position at issue.

We are not persuaded that Complainant was so overwhelmingly more qualified to render the
stated reason untrue. We further find that Complainant did not establish, by a preponderance of
the evidence, that she was otherwise the victim of unlawful discrimination or that the stated
reason was a pretext.

2 An employer’s subjective reason for not selecting a candidate, such as a subjective assessment
of the candidate’s performance in an interview, may serve as a legitimate, nondiscriminatory
reason for the candidate’s non-selection. To satisfy the employer’s burden of production, the
employer must articulate a clear and reasonably specific basis for its assessment. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 US. 248, 258 (1981).
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CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tends 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

November 20, 2018
Date