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

Equal Employment Opportunity Commission

Jun 20, 2018

0120161207 (E.E.O.C. Jun. 20, 2018)

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

Alejandro T.,1
Complainant,

v.

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

Appeal No. 0120161207

Hearing No. 420-2015-00107X

Agency No. ARREDSTON14APR01100

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 January 20, 2016, final
order concerning his 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Engineer,
DB-0801-04 at the Agency’s Aviation Missile Research and Development Center ("AMRDEC"),
Engineering Directorate, Production Engineering Division in Redstone Arsenal, Alabama. His
first level supervisor was a DB-IV Supervisory General Engineer (S1) and his second level
supervisor was the Chief of the Production Engineering Division (S2). On April 1, 2014,
Complainant contacted an EEO Counselor. On July 19, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis of race (African-
American) when:

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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1. During May 2007, Complainant became aware that he was not selected
for a canvassed Supervisory (DB-0801-04) position located in the Air and
Missile Defense Branch within the Engineering Directorate;
2. During January 2008, Complainant became aware that he was not
selected for a canvassed Supervisory (DB-0801-04) position located in the
Aviation Branch within the Engineering Directorate;
3. On or about March 4, 2013, Complainant became aware that he was not
selected for a canvassed Supervisory General Engineer (DB-0601·04)
position located in the Production Engineering Division within the
Engineering Directorate; and
4. On or about March 19, 2014, Complainant was not selected for a
canvassed Supervisory General Engineer (Platform Branch Supervisor,
DB-0801-04) position located in the Production Engineering Division
within the Engineering Directorate.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s July 27, 2015,
motion for a decision without a hearing and issued a decision without a hearing on December 31,
2015.

In the decision, the AJ dismissed Claims 1 – 3 for untimely EEO Counselor contact. The AJ
considered these time-barred nonselections as background evidence in determining whether
Complainant was not selected as alleged in Claim 4. The AJ found that Complainant's
qualifications were not superior to the qualifications of the selectee in Claim 4. The AJ found
that Complainant failed to prove he was discriminated against as alleged in Claim 4. The AJ also
concluded that the four alleged nonselections did not establish that Complainant had been
subjected to a hostile work environment because his evidence failed to demonstrate that he was
subjected to any harassment which was pervasive or severe enough to alter the terms, conditions,
or privileges of his employment, and which stemmed from a discriminatory animus. The Agency
subsequently issued a final order adopting the AJ’s decision.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
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are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of 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 fact is "material" if
it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one
party without holding a hearing unless he or she ensures that the party opposing the ruling is
given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive
statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a
statement, and (4) the chance to engage in discovery before responding, if necessary. According
to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing
summary judgment] has not had the opportunity to discover information that is essential to his
opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2)
(suggesting that an administrative judge could order discovery, if necessary, after receiving an
opposition to a motion for a decision without a hearing).

After a review of the record, we find that there are no genuine issues of material fact or any
credibility issues which required a hearing and therefore the AJ's issuance of a decision without
hearing was appropriate. The record has been adequately developed. Complainant does not
dispute the determination that his EEO Counselor contact was untimely for Claims 1 – 3 and we
find no error in the dismissal of Claims 1 – 3 pursuant to 29 C.F.R. § 1614.107(a)(2).

Assuming arguendo that Complainant established a prima facie case of discrimination with
respect to Claim 4, we concur with the AJ's finding that the Agency articulated a legitimate,
nondiscriminatory reason for the selection - that S2 (the selecting official) saw more depth in the
Selectee’s answers, a higher level of responsibility demonstrated, and more examples given in
response to the interview questions. We also find that Complainant failed to prove this reason
was a pretext for race discrimination or that Complainant’s qualifications were clearly superior
to the Selectee for the position in Claim 4.

With respect to Complainant's contention that he was subject to a hostile work environment as a
result of the four nonselections, we concur with the AJ's findings that the allegations complained
of in the instant matter did not rise to the level of actionable harassment. Complainant failed to
produce any evidence beyond his own speculation that his race motivated the Agency’s actions.

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CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination for Claim 4 and dismissing
Claims 1 - 3.

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. 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
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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

June 20, 2018
Date