0120161843
02-23-2018
Billie S.,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, DC 20013
Billie S.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120161843
Hearing No. 410-2013-00062X
Agency No. 11-67004-01416
DECISION
On December 12, 2015, 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 27, 2015, final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Facility Operations Specialist, GS-1640-12 at the Agency's Marine Corps Logistics Base facility in Albany, Georgia.
On May 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when he was not referred for the position in question on Internal Certificate SE8-GS1640-12-MR057774-I-IN12.
The complaint was investigated. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The parties were to engage in discovery. On November 20, 2012, the Agency submitted its discovery request on Complainant. Complainant failed to respond to the Agency. On January 15, 2013, Complainant and the Agency's counsel discussed the matter and he submitted his responses on January 23, 2013. A review of the responses show that Complainant failed to provide the documents or admissions as requested. In addition, Complainant was non-responsive to interrogatories. By motion dated February 25, 2013, the Agency moved to have the AJ compel Complainant to respond and requested that the matter be dismissed from the hearing as a sanction. The AJ granted the Agency's motion to compel on March 11, 2013. On March 21, 2013, Complainant provided a one page response to the AJ stating, in essence, he would not comply with the order. On April 8, 2013, the Agency moved again for sanctions against Complainant. Specifically, the Agency asked that the AJ deny Complainant's request for a hearing. Complainant did not respond to the Agency's motion. On June 10, 2013, the AJ dismissed the hearing and remanded the complaint to the Agency for a final decision.
In its July 29, 2013 decision, the Agency chose to implement the AJ's decision as its final action. As such, the Agency dismissed the complaint and provided Complainant with appeal rights. Complainant appealed the Agency's decision.
In EEOC Appeal No. 0120132940 (Sept. 4, 2015), we found that the AJ properly sanctioned Complainant by denying him his right to a hearing. In addition, the decision noted that the AJ remanded the matter to the Agency for issuance of a decision. However, the Agency's final decision dismissed the complaint. As such, the previous decision remanded the complaint to the Agency for issuance of a new final decision by the Agency addressing the merits of the complaint.
On November 27, 2015, the Agency issued its final decision finding no discrimination. The Agency held that it provided legitimate, nondiscriminatory reasons for its action. Specifically, the Agency indicated that the Lead Human Resources Specialist (Specialist, White) stated in her affidavit that the Agency used the automated RESUMIX system to fill internal vacancies. She explained how the system extracts the names of applicants whose skills match those of the position to be filled. She asserted that only the applications reflecting those skills were reviewed. She also noted that race was not a factor in the automated RESUMIX system.
Finding that management provided legitimate, nondiscriminatory reasons for not considering Complainant's application, the burden shifts to Complainant to show that the Agency's reason constituted pretext. The Agency noted that Complainant's application showed that his highest grade was GS-09. However, the position in question required "52 weeks of specialized experience equivalent to GS-11." The Agency found that Complainant provided no evidence to explain why he would otherwise be qualified for the position at hand. Therefore, the Agency concluded that Complainant failed to prove that he was subjected to discrimination based on his race as alleged in his complaint.
This appeal followed.
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 based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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. 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. 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
A review of the record indicated that the Agency uses an on-line application system called RESUMIX. The Specialist explained that potential applicants for positions submit resumes, and when there was a vacancy to be filled, the computerized RESUMIX matched resumes to the advertised job. The Specialist stated that if an applicant's name was not on the Resume Match List for a particular vacancy it is because the RESUMIX system made the determination that the applicant did not have the identified job skills to be among the qualified candidates to be referred for further consideration. The only resumes reviewed for the vacancy at issue were the ones matched by RESUMIX as having one or more identified job skills, and developed the Certificates of Eligibility to forward to the selecting official. The record indicated that RESUMIX did not rate Complainant for consideration for the position in question indicating that he was "not among the best qualified." Based on our review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for not referring Complainant for the position in question.
Finding that the Agency has met its burden, we turn to Complainant to establish that the Agency's reason was pretext for discrimination. Complainant summarily stated that he should have been rated "highly qualified" and should have been considered for the position in question. We note that Complainant did not provide any support for his assertions. Upon review, we conclude that Complainant has not established that the Agency's reason constituted pretext for discrimination based on his race as alleged.
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 finding no discrimination.
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 23, 2018
__________________
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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