EEOC Appeal 2020000706

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Flora S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 2020000706
Agency No. DLAF-18-0101
DECISION
On October 10, 2019, 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
September 11, 2019, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 	For the following
reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as
alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Document
Management Assistant, GS-0303-06 at the Agency’s Data Production Operations (J67F) facility
in Oklahoma City, Oklahoma.
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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Management and Program Analyst position
Complainant applied for the CRS Level Management and Program Analyst (MAPA) position at
Tinker, Air Force Base, Oklahoma. The Selection Official (SO1) was the Customer Data Relations
Management Division Director. There were five vacancies, one of which was located in Oklahoma
City. Human Resources (HR) forwarded a Certificate of Eligibles to SO1, who assembled a
selection panel comprised of her branch chiefs to review the applicants’ resumes and conduct
Behavior Based Interviews (BBI). All interviewed candidates were asked the same questions
which were based on the core competencies of the position: 1) oral communication; 2) customer
service; 3) flexibility; 4) motivation; 5) influencing and negotiation; and 6) interpersonal skills.
Eleven candidates were interviewed. Complainant was not among them because the panel had
mistakenly determined that Complainant was not an Internal Document Services candidate based
upon a review of her resume, which did not list her jobs in chronological order. 	The panel
discussed and made their recommendation based on the answers to the BBI questions, the
candidates' skills, and their resumes. Around January 22, 2018, the selection panel provided SO1
with their recommended candidate who had achieved a score of 70. SO1 submitted to HR the
recommended candidate for the job. According to Complainant, the recommended candidate had
not accepted or declined the offer as of February 14, 2018.
Following an inquiry about not receiving an interview, Complainant stated that on February 15,
2018, she received an email scheduling her for a telephone interview for the CRS Level I MAPA
position for the next day. After a 61-minute interview, Complainant said she recalled that she had
seen on usajobs.gov that she was ranked “Not Selected” for the position and thus she contacted
HR to determine whether the job(s) had been filled. Complainant said HR told her the jobs had
been filled. The selection panel’s ratings indicated that Complainant did not perform as well as
others in the interview in the areas of customer service, motivation, and flexibility. The panel gave
Complainant a total rating of 52. When the recommended candidate declined the position, SO1
chose the next best candidate who had an overall score of 64 based on the panel’s interview ratings.
Document Management Assistant position
Complainant also applied for vacancy announcement number DLAJ6-17-2027604-MP, Document
Management Assistant 	(DMA), 0303-07. The Operations Manager for the Agency’s Data
Production Operations was the Selecting Official (SO2). Under this vacancy, the Agency sought
to hire three DMAs for several locations including Oklahoma. 	Complainant’s application
indicated an interest only in Oklahoma.
SO2 said that on January 12, 2018, he received a "certificate of eligible" (CERT) list from Human
Resources (HR) containing 26 qualified candidates. Complainant was not on the list. However,
shortly thereafter HR added another qualified candidate (CD1) to the CERT list making 27
qualified candidates for the three positions.

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SO2 said that he reviewed the list of 27 qualified candidates and determined that 15 should be
interviewed. After four of the 15 candidates withdrew from consideration, SO2 said he assembled
a panel of three GS-11 Document Automation Supervisors to interview the remaining 11
candidates between January 23-25. 	All DMA candidates were asked the same BBI questions.
After the interviews, the panel recommended CD1, CD2, and CD3 as the best qualified individuals
for the three DMA positions. The panel also recommended the following alternates, A1, A2 and
A3, should any job offers be declined. SO2 said that he accepted the recommendation of the panel
and returned the CERT list to HR identifying the successful candidates.
On January 31, 2018, HR informed SO2 that Complainant had been improperly left off the CERT
list and needed to be interviewed. SO2 said he reassembled the same panel and they interviewed
Complainant on February 1, 2018, using the same BBI format and questions. However, after
interviewing, the panel did not recommend that Complainant be a selectee or alternate.
Complainant’s interview scores placed her behind all three selectees, the three alternates, and one
other interviewee. SO2 concurred with the panel’s recommendations and extended job offers to
the original selectees. CD1 and CD3 accepted but CD2 and A1 declined. Consequently, A2 filled
the third slot. The successful candidates were placed in Pensacola, Florida, Jacksonville, Florida
and Charleston, South Carolina, respectively.
On April 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of disability (physical and mental) and age (45) when:
1. 	In February 2018, CP was informed she was not selected for the position of
Management and Program Analyst, GS-0343-07/9/11, advertised under JOA
DLAJ6-18-2027360-MP.
2. 	On or about February 9, 2018, CP was informed she was not selected for the
position of Document Management Assistant, GS-0303-07, advertised under JOA
DLAJ6-l 7-2027604-MP.
Regarding Claim 1, Complainant alleged that the MAPA nonselection was discriminatory because
in her current position she receives a reasonable accommodation for medical issues. She averred
that she believed management saw her as someone who is just a problem employee or a leave "earn
and burn" employee. Complainant explained that her physical disabilities included collagenous
colitis, severe migraines, and neck and shoulder issues including but not limited to disc
degeneration and bursitis. 	Complainant explained that her mental disabilities included stress,
depression, and anxiety associated with her gastrointestinal issues and the embarrassment it would
cause if she had a GI-related accident while on the job. 	Complainant admitted that she did not
know the interview panel members or the selection officials for the positions and she did not know
if they were aware of her age or disabilities. According to the record, none of the selecting officials
and interview panelists knew Complainant, her age, or about her disabilities.

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With respect to Claim 2, Complainant asserted that her DMA nonselection was unfair because by
the time she was interviewed, two of the positions had been filled and they were awaiting a
response to an offer for the third position. She believed she was placed in a disadvantaged position
since the positions had already been filled.
After 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). In accordance with Complainant’s request, the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 	The decision concluded that
Complainant failed to establish she was subjected to disparate treatment on the bases of her
disability and age when the Agency did not select her for the MAPA or DMA positions in February
2018.
With respect to her nonselections, the Agency found that it had articulated a legitimate,
nondiscriminatory reason for each nonselection – namely that the selecting officials did not choose
Complainant for the positions because they did not believe her to be the most qualified based on
the findings of the interview panels. Moreover, the Agency found, Complainant could not
demonstrate her qualifications were plainly or demonstrably superior to those of the selectees.
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”).
We have thoroughly reviewed the record and conclude that the Agency did not err in finding that
Complainant failed to establish her claims of age or disability discrimination. We find that, even
if Complainant established a prima facie case, she did not show that the Agency’s reasons for her
nonselections were pretextual or that the Agency harbored any animus or bias based on her
protected traits. In fact, Complainant concedes that she had no connection with SO1 or SO2 or
the interview panels, and she did not know who they were nor had any evidence that they were
aware of her age or disabilities. 	The selection officials and interview panel members all deny
knowing Complainant or about her age or disabilities. Furthermore, we find that Complainant has
not shown that the Agency’s reasons for its selection decisions were unworthy of belief or
motivated by discrimination. Finally, Complainant has not shown that her qualifications were
superior to the selectees.

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CONCLUSION
The Commission AFFIRMS the Agency’s decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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, 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).

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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
November 4, 2020
Date