0120171055
03-28-2018
Bert G.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
Bert G.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171055
Hearing No. 570-2014-00719X
Agency No. 136114501115
DECISION
On January 27, 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 January 3, 2017, 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. 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 order.
ISSUES PRESENTED
Whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ's) decision that Complainant failed to demonstrate he was subjected to discrimination on the bases of race (African American) and age (51), when he was notified by letter dated January 11, 2013 that he was not selected for a Full-time Maintenance Worker (Vacancy Announcement #M-20512) position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Flexible Maintenance Worker at the Agency's Navy Recreation Center (NRC) facility in Solomons, Maryland. The AJ's decision clearly articulates the facts pertaining to Complainant's employment and the selection process for the Full-time Maintenance Worker position. This decision incorporates them by reference and will not reiterate them.
The record reflects that Complainant applied to Vacancy Announcement #M-20512 on December 5, 2012, which opened September 18, 2012. Complainant was deemed qualified for the position, and was referred to management for selection consideration. Seven candidates, including Complainant, appeared on the Certificate of Eligibility. Four of the seven candidates, including Complainant, were interviewed by a three-person hiring panel. Complainant was notified by letter dated January 11, 2013 that he was not selected for the position. The Selectee was a Caucasian male, under 40 years of age.
On May 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issues Presented above. At the conclusion of 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 AJ. Complainant timely requested a hearing. The Agency filed a motion for a decision without a hearing on November 16, 2015, and Complainant filed a response on December 2, 2015. The AJ denied the motion and ordered the case to a hearing on September 13, 2016. A hearing was held on November 30, 2016, and the AJ issued a decision on December 15, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's final order implementing the AJ's decision finding that he failed to establish he was subjected to discrimination as alleged. Complainant argues that the Agency's use of an application and evaluation process that heavily weighted his verbal and written abilities for a Maintenance Worker position constitutes a denial of fair opportunity to advance. Complainant contends that more weight should have been given to his demonstrated ability to perform the duties of the positon.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race and age, there is substantial evidence in the record to support the AJ's finding that Complainant did not show that the Agency's reasons for not selecting him were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the non-selection, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
Specifically, the record reflects that Complainant submitted a handwritten application for the position without references or a resume. Under the "duties and accomplishments" section of the resume, Complainant listed very general skills such as "all types of maintenance work, glass cutting, roof work, road work, motor work, and paint work." Complainant did not list any skills unique to the position, or skills that made him stand out amongst the eligible candidates. Although Complainant did not provide any references in the application, he indicated on this page that the Agency could contact his references. Complainant's interview did not go well. Several members of the hiring panel described Complainant as appearing as though he did not want to be there. It was noted that Complainant did not make eye contact and gave short answers.
Alternatively, the Selectee submitted a typed application, list of references, and a resume that listed both conventional maintenance skills and specialized skills, such as heating, air conditioning and ventilation, or HVAC, maintenance and repair. He listed three references for the Agency to contact about his skills. The Selectee also earned the highest composite score from the panelists and received the highest rating by each individual panelist as well. The record reflects that these scores were based in part by the superior breadth and depth of his knowledge and the attention to detail reflected in his responses to the questions in the interview.
Complainant asserts three arguments in his attempt to establish pretext. First, Complainant contends that his non-selection is part of a larger pattern of discrimination against African American employees. He recalled stories of the alleged use of the "N-word" and rumors of irregularities in the hiring process over the years. Secondly, Complainant argues that the Agency violated its own rules, specifically the section of the collective bargaining agreement, which provides for the noncompetitive conversion of flex employees into full-time positions and preference in full-time hiring for flex employees with over 12 months of service and evaluations at the highly satisfactory or outstanding level. Finally, Complainant contends that the Selectee was afforded preference because of his race, and for having been referred by a Caucasian employee. We find that these assertions by Complainant, without more, are insufficient to establish pretext. Substantial evidence in the record supports the Agency's contentions that the Selectee gave a better interview, submitted a stronger application for the position, was rated highest on the interview scores, and for these reasons was selected for the position. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find there is no persuasive evidence of unlawful motivation in the instant matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that substantial evidence in the record supports the AJ's decision finding that Complainant failed to establish he was subjected to discrimination on the bases of race (African American) and age (51), when he was notified by letter dated January 11, 2013 that he was not selected for a Full-time Maintenance Worker (Vacancy Announcement #M-20512) position. The Agency's final order adopting the AJ's decision is AFFIRMED.
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 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, Director
Office of Federal Operations
___3/28/18_______________
Date
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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