EEOC Appeal 2020001785

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kandi M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 2020001785
Agency No. DCAA-CASE-W18-005
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 November 14, 2019, 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., 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.
BACKGROUND
During the time at issue, Complainant was employed as an Auditor, GS-0511-12, at the Agency’s
Headquarters, Business Systems Team, Arizona Sub office, located in Chandler, Arizona. 	On
September 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Hispanic), national origin (Hispanic), religion (Jewish), age (57)
and in reprisal (prior EEO activity) when on June 18, 2018, she became aware she was not selected
for the position of Auditor (Field Audit Office (FAO) Assistant for Quality [FAQ]), GS-0511-13,
vacancy announcement number DCAA-18-WE-101898.2
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.
2 The Commission recognizes the term “Hispanic,” to be an indication of national origin, not race.

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The record indicates that the Agency issued a job announcement for a GS-13, Auditor position in
its Albuquerque, New Mexico office. Complainant was one of six candidates interviewed by the
selection panel. The panel consisted of three members: the FAO manager from the Balboa Branch
office (P1), the FAO manager from the San Diego Branch Office (P2), and the FAO manager from
the Pasadena Branch office (P3).
The interviews included 13 questions. Each candidate was rated by each selection panel member
on a scale of one to five for each question. A score of one indicated no relevance to the question,
no understanding of subject matter, poor presentation of response. A score of five indicated
extremely relevant to the question, articulate, excellent presentation of responses. Complainant's
average total score of 38, tied with another candidate as the lowest score. The top two scores were
60 and 53. Consequently, Complainant was not among the top two candidates recommended by
the selection panel to the selecting official, the Regional Audit Manager (RAM), for further
consideration. The Selectee received the score of 60.
On June 18, 2018, Complainant was notified that the Selectee had been chosen for the position.
Complainant maintained that her former supervisor (A1), and the RAM were the individuals who
discriminated against her.3 Complainant worked for A1 in 2012. A1 was the FAO Manager of
the Albuquerque Branch. 	The record indicates that he along with the RAM invited the other
Branch Managers, his colleagues in the region, to join the panel, and helped the panel members
with preparing the interview questions. 	According to A1, he played no direct role in the actual
selection. Complainant stated that she believed A1 was the selecting official because he was the
Branch Manager of the Albuquerque Field Office, and she felt that the RAM would have relied on
his input.
Complainant testified that the Selectee was less qualified than she was based on experience and
education. Complainant also stated that she had experience as a Lead Auditor, acting Supervisory
Auditor, and had more than 18 years’ experience with the Agency. She was also a certified public
accountant and held a Bachelor of Science degree in accounting. She maintained that the Selectee
did not have these qualifications. 	Complainant further stated that the Selectee appeared to be
Caucasian, and under 40, and because she had relocated from Utah, Complainant assumed she was
Mormon. Complainant stated that she believed her race and national origin were factors in her
nonselection because the selected candidates in previous promotions were Caucasian. She believed
that religion was a factor in the selection because, in her opinion, the Agency favored Mormon
employees and applicants over non-Mormons, and that “White privilege” was the norm at the
Agency in hiring, retention, mentoring, and training. Complainant did acknowledge that she did
not believe the RAM was aware of her national origin, race, age, religion, or prior protected activity
at the time of the selection. She added that she did not know if the panel members were aware of
her age, religion, or protected EEO activity but they might have known her national origin based
on her name.
3 According to the record, neither A1 nor the RAM were named in Complainant’s prior EEO
complaints against the Agency.

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The RAM stated that she and A1 asked for volunteer panel members from three offices outside of
the Albuquerque office. The panel decided on the questions for the interview, using some questions
from previous interviews. The panel reviewed the applications and decided to interview all six
qualified applicants. The interviews were conducted telephonically. The panel recommended the
Selectee and CW1, as an alternate candidate. The RAM stated that she reviewed the resumes, and
questionnaires and re-interviewed the Selectee. 	Based on her interview, she determined the
Selectee was the best qualified for the position. She indicated that the Selectee was able to expound
on her experience during the interview and outlined plans for the FAO. She also explained how
her experiences would fit into the position and improve the quality within the office. The RAM
felt that the Selectee’s experience, knowledge, and skills aligned with the requirements of the
position. Based on the information she reviewed and her interview of the Selectee, the RAM agreed
with the panel’s recommendation and choose the Selectee.
The RAM stated that while Complainant’s experience was comparable to the Selectee’s, her
responses during the interview were not as good. She noted that, based on her interview scores,
Complainant, along with another candidate, were ranked last in the interviews. She denied that
Complainant’s protected categories played any role in the selection decision.
P1 stated that the Selectee was chosen because she was already working in the Albuquerque office
and thus had knowledge of the workload, and the personnel. Her resume was responsive to the
position and she thought the Selectee would be a good fit due to her experience and personality.
P1 noted that the Selectee, among other things, was able to describe training she designed to
enhance products and show how she assisted the team. Moreover, she described specialized
training she delivered to various audit team levels or at staff conferences, and detailed special
projects she had completed. Regarding Complainant, P1 stated that her interview responses were
reserved, and she struggled to come up with examples during the interview. Furthermore, she
stated that Complainant’s resume contained spelling and grammatical errors, which showed a lack
of attention. Compared to the Selectee’s, P1 felt that Complainant’s responses did not indicate the
same level of experience. She also noted Complainant’s low interview score.
P2 stated that Complainant was not recommended/selected because her interview responses were
not as thorough or as strong as the Selectee's responses. She also noted spelling and grammatical
errors in Complainant’s resume, and her low interview scores. P2 cited the Selectee’s previous
acting supervisory experience and her challenging audit experience. The Selectee, she felt, was
accomplished in both her Agency and non-Agency work experience, she worked well with others,
and her responses showed she had the knowledge, skills, and abilities to execute the functions of
the position.
P3 cited as the reason for her selection, the Selectee’s skills and experience, including training
new auditors on the detailed testing of various cost elements; and on preparing audit working
papers that have been used as a template by various other auditors. He also stated that
Complainant’s depth of experience was not as great as the Selectee’s, and she did not demonstrate
the same level of training experience, and supervisory review of working papers, among other
things.

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For example, he stated that she was not able to articulate her understanding of the FAQ position
as well as the Selectee, including the discussion of the importance of explaining to auditors not
only what they need to do but why they are doing it. P3 stated that this was an area of emphasis
by the Agency and senior management. Overall, he felt that several of Complainant’s responses
were not comprehensive and lacked as many specific examples as the Selectee’s.
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. 	When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). 	The decision concluded that Complainant failed to prove
that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
On appeal, Complainant, for the most part, reiterated her contention that she was more qualified
for the position that the Selectee. She also speculated that A1 and/or other managers at the
Albuquerque Branch could have provided aid to the Selectee and CW1, who was also from the
Albuquerque Branch, by giving them interview coaching and the questions.
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”).
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that she was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). 	Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

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To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant
needs 	to 	demonstrate 	such 	“weaknesses, 	implausibility, 	inconsistencies, 	incoherencies, 	or
contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact
finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC
Appeal No. 0120160132 (Sept. 14, 2017).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on her
national origin, religion, age, and reprisal for her prior EEO activity, we find that the Agency
articulated a legitimate, non-discriminatory reason for her non-selection, i.e., the Selectee was
determined to be the more qualified for the position than Complainant. 	We find no persuasive
evidence of pretext here. Although Complainant maintained that she was more qualified because
she had more years of experience than the Selectee, the fact remains that the Commission has long
held that mere years of service, or length of service, does not necessarily make an individual more
qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC
Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No.
05A41248 (Oct. 5, 2004). Neither does years of service automatically make an individual more
qualified. Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19,
1991).
Also, Complainant offered no evidence to support her speculation that A1 was the real selecting
official and that he or others influenced the process by providing coaching and questions to the
Selectee and CW1. Given that the successful candidate would be working in his branch it is not
unreasonable that he would provide input on the questions that the panel asked all the candidates.4
To the extent that Complainant maintained that the Selectee may have been preselected, we note
that even if preselection occurred, it would not be unlawful unless Complainant can show that the
preselection was driven by discriminatory animus. See Nickens v. Nat’l Aeronautics Space
Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected individual and not some
prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (Jul. 28, 1994).
Here, we find no such evidence, nor do we find that pre-selection occurred.
Finally, upon reviewing the totality of the record, we simply do not find that Complainant’s
qualifications were so observably superior to those of the Selectee that no reasonable person, in
the exercise of impartial judgment, could have chosen the Selectee over her. Cooper v. Southern
Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-
1198 (2006). We note in this regard that both candidates were deemed qualified and referred for
further consideration. Although Complainant had more years of experience, performed more
audits, and worked in a variety of settings, the record does not indicate that she would have made
a better selectee for this position.
4 As Complainant did not request a hearing, we do not have the benefit of an Administrative
Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us.

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The RAM stated that while Complainant’s experience was comparable to the Selectee’s, her
responses during the interview were not as good. In fact, Complainant ranked at the bottom. Also,
the RAM felt that the Selectee’s experience, knowledge, and skills aligned with the requirements
of the position. This opinion was also reflected by P1, P2, and P3. 	The Commission will not
substitute our judgment for the judgment of selecting officials familiar with the present and future
needs of their facility and therefore in a better position to judge the respective merits of each
candidate, unless other facts suggest that proscribed considerations entered into the decision-
making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6.
1998). We find no such evidence of proscribed considerations here.
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 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 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 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.

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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. 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
August 10, 2020
Date