0120162506
04-13-2018
Darius C.,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
Darius C.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162506
Hearing No. 430201500007X
Agency No. 144008500459
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's June 24, 2016 Final Order concerning an 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Maintenance Mechanic, WG-10, Facilities Engineering Command, Mid Atlantic ("NAVFAC MIDLANT") at the Agency's Yorktown Naval Weapon Station in Yorktown, Virginia.
On September 30, 2014 Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of age (58) and reprisal (Agency No. DON124008501564)) when he was not selected for promotion to the following three positions:
1. On or about October 13, 2013, Complainant applied for a Facilities Operations Specialist ("FOS") (PM Program) GS-1640-7/9/11 (PD #2568A), and
2. On November 6, 2013, Complainant applied for two Engineering Technician positions ("FMS"), GS-0802-9/10/11 (PD# 0586A).
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Over Complainant's objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency. In reaching this decision, the AJ noted that Complainant had the opportunity to develop the record through discovery, and based on the record, as well as the parties' submissions, he determined the following undisputed facts.
On April 12, 2012, Complainant initiated EEO counseling when he was not selected for a position. Specifically, Complainant alleged that he was discriminated against by the Selecting Official ("SO"), an Engineering Technician Supervisor, GS-12, (51, prior EEO activity not specified). Shortly afterward, Complainant informed his EEO counselor that he changed his mind about filing a complaint. The Agency provided Complainant with documentation confirming his voluntary withdrawal of his allegations on April 17, 2012.
On or about October 13, 2013, Complainant applied for the FOS position, and on November 6, 2013, he applied for the two FMS positions. All FOS and FMS applications were screened by a Human Resources Specialist ("HR") (54, prior EEO activity not specified). HR then compiled and ranked a list of eligible candidates, which she forwarded to SO. HR included Complainant on the list, identifying him as qualified for the FOS and FMS positions, level GS-9. The three selectees were all determined by HR to be at level GS-10. Both HR and the SO state in the record that they were unaware that Complainant engaged in prior EEO activity.
In October and November 2013, SO selected three candidates from the list HR provided. SO was the only selecting official and rather than conduct interviews, he based his selection on his review of the candidates' applications and resumes. The FOS selectee ("S1"), at age 61, was three years older than Complainant. One of the FMS selectees ("S2") was 57 years old and the other ("S3") was 39 years old. At the time, S3 was already working as an FMS, GS-10, as he had been assigned on a 120-day detail assignment, meant to temporarily fill one of the open FMS positions at issue. None of the selectees had engaged in prior EEO activity.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, Complainant argues that the AJ made an error of law when he found that Complainant failed to establish a prima facie case for reprisal as a basis of discrimination in all three nonselections, and failed to establish a prima facie case for age as a basis of discrimination in two of the three nonselections. Complainant further argues that questions of fact exist concerning whether he had "observably superior" qualifications, and regarding SO's credibility, warranting a hearing.
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 based on a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Reprisal
Complainant may establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing McDonnell Douglas, see also Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997). Complainant must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Kristy E. v. Dep't of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The AJ properly found Complainant failed to establish Element 2, knowledge, so he dismissed reprisal as a basis of discrimination in all three allegations for lack of a prima facie case.
On appeal, Complainant argues that SO was aware that he engaged in prior EEO activity, because on April 12, 2012, he named SO as the responding management official when he contacted an EEO Counselor when he was not selected for a position. However, Complainant's only proffered evidence of SO's awareness at the time is a reference to his own testimony in a transcript for the record. Specifically, Complainant testified that sometime after he contacted an EEO Counselor in April 2012, the selectee for the position at issue told Complainant that management was upset with him because he reported his nonselection to the Agency's EEO Office. Complainant provides no supporting evidence, such as a statement from the April 2012 selectee, or EEO records from the initial complaint that would indicate the EEO Counselor contacted SO about Complainant's allegations.
We note that Complainant describes his EEO activity as an "informal" contact, and does not dispute that he withdrew his complaint before it was investigated. Complainant testifies in the record, "the only thing that I have in common with [SO] is that he was the selecting official." He also states that he had "known [SO] for about 20 years" but did not see him on a regular basis, and never worked within his chain of command. See ROI 338-341. Additionally, as the AJ pointed out, 18 months passed since the prior EEO activity and the nonselections at issue in the instant complaint. On appeal Complainant vigorously argues that this passage of time is irrelevant to whether SO knew about his prior EEO activity. However, we find the AJ gave the 18-month gap in EEO activity proper consideration given the brevity of Complainant's April 12 EEO activity, and lack of contact with SO during the intervening months. Additional evidence is necessary to contradict HR and SO's statements for the record that they were unaware of his prior EEO activity. Based on the information before us, Complainant has not established by preponderance of the evidence that the selecting officials were aware of his prior EEO activity, when they made their selection, thereby failing to establish a prima facie case of retaliation.
Age
To establish a prima facie case of age discrimination, Complainant must show that he was over forty years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e. he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). The Supreme Court has held that because the ADEA prohibits discrimination based on age and not class membership, the fact that a similarly situated comparative is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than the fact that the plaintiff was treated differently than someone outside his protected class. See O'Connor, at 312; EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). While there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years. See Hammersmith v. Soc. Sec. Admin., EEOC Appeal No. 01A05922 (Mar. 6, 2002).
Complainant failed to establish a prima facie case of age discrimination for S1 and S2, since neither was under age 40 or "substantially younger" than Complainant. On appeal, Complainant has offered no persuasive argument or evidence that SO's selection of S1, who was older than Complainant, and S2, who was one year younger than Complainant, was motivated by age discrimination. Complainant did establish a prima facie case for age discrimination for S3, who was 19 years younger than Complainant, but the AJ dismissed the complaint based on the Agency's legitimate nondiscriminatory reason for its actions.
Legitimate Nondiscriminatory Reason
Since Complainant alleges disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for not selecting complainant, it is Complainant's burden to demonstrate by a preponderance of the evidence that the Agency's non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Burdine, at 253, Hicks. In a nonselection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. See Shapiro citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998).
The agency has broad discretion to set policies carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, at 259; Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) citing Stiles v. Dep't of Transportation, EEOC Request No. 05910577 (Jun. 27, 1991) (in the absence of plainly superior qualifications belonging to complainant to compel a finding of pretext, the Commission will not second guess the agency's personnel decisions). In a November 21, 2013 email explaining how he made his selection, SO stated that he hired S3 because it was his opinion that S3's "education and experience make him the best qualified candidate for the position." He further explains that reviewed the GS-10 candidates, and of the four, he selected S3, who was filling one of the vacant GS-10 FMS positions on a detail assignment. According to the record, SO did not consider Complainant's application, which was listed as GS-9 level.
Complainant argues that SO's proffered reason is pretext for discrimination based on lack of supporting evidence, citing SO's failure to use a consistent resume scoring system, and interview the candidates. Complainant argues that his qualifications are "observably superior" to those of the selectees regardless of his lower GS level. Complainant cites the scores HR gave the candidates on the list of eligibles, where S1 had a score of "62," Complainant and S2 both scored "58" and S3 scored "40." Complainant argues that the 18-point discrepancy between his and S3's score indicates that he is more qualified, and should have overridden HR's rating of S3 at the GS-10 level. We find SO's preference for candidates with a higher-grade level is not evidence of discriminatory intent. Ultimately, Complainant is asking us to substitute our judgment with that of SO in determining what part of job applications the SO should base his decision on. Absent a showing that proscribed considerations entered the decision-making process, we will not substitute our judgment for that of a selecting official. There is no evidence that SO or HR violated Agency hiring policies. We have long held that selecting officials familiar with the present and future needs of their facility are therefore in a better position to judge the respective merits of each candidate. See Shapiro citing Bailar.
Finally, we find no persuasive evidence that Complainant's qualifications are demonstrably superior to those of the selectee's. See Bailar, Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). While a consistent resume scoring method and interview records can be critical for determining a nonselection complaint, we find them unnecessary in this case. The AJ noted, "[a]ll but one of the candidates selected are within Complainant's protected group. (i.e. not "substantially younger than him)." SO's selection of a candidate who was a year younger than Complainant for an identical position, and a candidate three years older than Complainant, are evidence that SO was not motivated by age discrimination. See Latamore v. Dep't of Justice, EEOC Appeal No. 01A41742 (Apr. 30, 2004) ("the fact that one of the other candidates referred to the selecting official is ten years older than complainant is further evidence that complainant's age was not a factor in her nonselection"), see also Hickman v. Dep't of Justice, EEOC Appeal 01A11797 (Dec. 20, 2001). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not addressed herein, 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
April 13, 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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