Darrell C.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0120160610 (E.E.O.C. Apr. 25, 2018)

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

Darrell C.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120160610

Hearing No. 480-2012-00755X

Agency No. DON-11-62473-03755

DECISION

On November 30, 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
October 23, 2015, 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 Pipefitter, WG-
4204-10, for the Naval Facilities Engineering Command Southwest (NAVFAC SW) in the
Utilities Department at the Miramar base in San Diego, California. On November 8, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against him based
on race (African-American) when he was denied the opportunity to fairly compete for the
position of Work Leader, internal certificate number SW1-5309-10-PAO83180-C-MM.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.
2Complainant raises both a disparate treatment and a disparate impact theory of discrimination.
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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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned
to the case granted the Agency’s June 13, 2014, motion for a decision without a hearing and
issued a decision without a hearing on June 24, 2015. 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.

AJ’S UNDISPUTED FACTS

The AJ summarized the following undisputed facts in her decision. The Utilities Department in
which Complainant worked employed approximately eleven employees, with one Lead Man.3
The then-current Lead Man (LM) (Black) held the position until sometime in 2011 when he
vacated this position. At that time, the selecting official who was responsible to fill this vacancy
(SO) (Caucasian) sent an email to the Utilities Department employees, inviting interested
candidates to submit their resumes to him. Eleven employees, including Complainant, submitted
their resumes to SO.

The customary method of applying for an open position was to apply either through the
USAJOBS website or the Civilian Hiring and Recruitment Tool (CHART). It is also undisputed
that Complainant had applied for past positions using USAJOBS or CHART. In this case,
Complainant did not apply on USAJOBS or CHART.

A Human Resources Specialist (HR) (Hispanic), was responsible for compiling the list of
applications for Team Lead, reviewing the applications to ensure that each candidate met the
minimum prerequisites, and issuing an Internal Certificate which contained a list of the qualified
candidates. HR reviewed the applications only of those who applied through USAJOBS or
CHART. The Internal Certificate contained the names of eight candidates (five Caucasian and
three Asian). Complainant was not on the Internal Certificate. The Internal Certificate was the
only source from which a selection could be made for the Lead Man vacancy.

Prior to the Human Resources Department issuing the Internal Certificate on which the eligible
candidates’ names were listed, SO convened an interview panel and interviewed all eleven
candidates who had submitted resumes in response to his email. Complainant was one of the
eleven candidates interviewed by the panel. The interview panel consisted of the outgoing Lead
Man (LM), the supervisor to whom the Lead Man would report (S1), and SO. SO was present at
the interviews but did not prepare or ask any questions. Rather, LM and S1 prepared their own
interview questions, and then asked the same questions of each candidate. SO was present at the
interviews to serve as a tiebreaker if the panel disagreed on the selection recommendation.

3 The Work Leader position at issue herein is more commonly referred to as the Lead Man
position.
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HR was not aware that SO had conducted interviews prior to the Internal Certificate being
issued. Interviewing candidates before a Certificate was issued was not the normal hiring
process used by the Agency. According to SO, it was customary for him to interview all
candidates. He did so to ensure that “no one was left behind in the process” and to give “all
employees the ability to interview.” SO also asserted that he interviews candidates before the
Internal Certificate is issued so that he can “streamline” the selection process. SO further
asserted that he cannot, however, select someone who is not ultimately on the certified list of
candidates.

Complainant stated that of the eleven candidates interviewed by SO, approximately six or seven
were Black. Both LM and S1 recommended the same candidate for selection (SE) (Caucasian).
SE was ultimately selected for the Lead Man position. The reasons provided for the selection
decision were that SE was the most qualified, based on a review of his job experience, formal
training, resume, and interview answers.

ANALYSIS AND FINDINGS

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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 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 are genuine issues for trial. Id. at 249.
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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).

Disparate Impact

To establish a prima facie case of disparate impact, Complainant must show that an agency
practice or policy, while neutral on its face, disproportionately impacted members of the
protected class. This is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged practice or policy. Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion”). Specifically, Complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id. The burden is on Complainant to show that “the facially neutral
standard in question affects those individuals [within the protected group] in a significantly
discriminatory pattern.” Dothard v, Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v.
Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).

Upon review of the record, we agree with the AJ’s analysis and conclusions reached with respect
to Complainant’s disparate impact claim. The AJ viewed the record in the light most favorable
to Complainant and concluded that he failed to present sufficient evidence to establish a prima
facie case of disparate impact. Specifically, the AJ concluded that Complainant failed to
establish that SO’s actions in interviewing all candidates prior to the creation of the Internal
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Certificate comprised an Agency policy, practice, or procedure. Rather, the undisputed record
established that SO (a GS-13 Mechanical/Civil Utilities Product Line Team Leader for
NAVFAC SW) deviated from the Agency’s standard operating procedure when he solicited
resumes and interviewed candidates apart from the formal hiring process. The AJ concluded that
the fact that SO stated that he has always done this was insufficient to transform his personal
practice into an Agency policy, practice, or procedure, as it was not known or condoned by the
Human Resources department or other official Agency personnel.

The AJ also noted in her decision that the record evidence did not reveal a significant statistical
disparity and noted that Complainant concedes this fact. The record shows that during the
relevant time, the Utilities Department had a total of 117 employees, 16 of whom were Hispanic
(13.6%), 65 of whom were Caucasian (55.5%), 19 of whom were African-American (16.2%), 16
of whom were Asian or Pacific Islander (13.6%), and one of whom was Native American (.8%).
The record also shows that that there were only five supervisory positions in the Utilities group,
three of which were held by Caucasian employees (60%), one of which was held by an African-
American employee (20%), and one of which was held by an Asian or Pacific Islander employee
(20%). Additionally, there were eight Work Leader positions. One of the Work Leaders was
African-American (12.5%), two of the Work Leaders were Asian or Pacific Islander (25%), and
five of the Work Leaders were Caucasian (62%). Thus, the percentage of African-American
Supervisors (20%) is greater than the overall number of African-American employees (16.2%)
and the percentage of African-American Work Leaders (12.5%) is only slightly less than the
overall number of African-American employees (16.2%). As such, there is no indication of a
significantly discriminatory Supervisor or Work Leader hiring pattern that disparately impacts
African-American Utilities Department employees.

However, the AJ concluded that even if SO’s personal practice was liberally construed as an
Agency policy or practice, and even if Complainant could demonstrate a statistical disparity in
hiring African-Americans for Team Leads, he had not presented evidence to show that any such
disparity was linked to SO’s practice (i.e., there is no evidence to show that African-American
candidates would more likely be misled by SO’s practice into not applying through USAJOBS or
CHART than Caucasian or Asian employees). The AJ further noted that Complainant had
previously applied for jobs through USAJOBS or CHART, and understood this to be the normal
practice in applying for jobs.

For these reasons, we agree with the AJ’s conclusion that Complainant has not presented
evidence to raise a genuine issue of material fact that an Agency policy, practice or procedure
had a disparate impact on African-American employees.

Disparate Treatment Claim

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
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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, 411 U.S.
at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, we agree with the AJ’s findings and conclusions with respect to the
disparate treatment claim. The record establishes that the Agency articulated, a legitimate, non-
discriminatory reason for not selecting Complainant for the Lead Man position (i.e.,
Complainant’s failure to formally apply for the position through USAJOBS or CHART resulted
in his name not being placed on the Internal Certificate for consideration).4

We agree with the AJ’s finding that Complainant failed to present sufficient evidence of pretext.
Complainant attempted to establish pretext by asserting that SO’s email to the potential
applicants was misleading, giving the impression that submitting a resume to SO was all that was
required. Complainant argued that SO’s email did not notify the potential applicants of having to
go through USAJOBs or CHART, which was, in fact, the only means to make it on the Internal
Certificate. Complainant further asserted that this misleading information was sent to weed out
African-American candidates.

The AJ concluded that the record was devoid of evidence to support this assertion and noted that
the email was sent to all employees in the unit. Moreover, the record is devoid of evidence that
any Agency official provided Caucasian and Asian candidates more information than Black
candidates concerning their need to apply through USAJOBS or CHART, and Complainant has
not proffered facts to suggest that such evidence exists. Accordingly, as the AJ correctly
concluded, even if SO’s methods created an incorrect perception about the application process,
all applicants were equally disadvantaged.

Complainant also argued that pretext should be found because there were no African-American
candidates on the Internal Certificate, thereby demonstrating that the Agency sought to fill the
position with a non-Black candidate. We agree with the AJ in finding this argument insufficient
to raise a genuine issue of material fact or law to demonstrate pretext because Complainant fails
to provide evidence to show that other African-American candidates submitted their applications
through USAJOBS or CHART and were found to have met the qualifications to be listed on the
Internal Certificate. As the AJ noted, in this regard it was HR, not SO, who determined which of
the applicants who had applied through USAJOBS or CHART met the qualifications to be

4 The record shows that Complainant assumed incorrectly that it was sufficient to submit his
resume directly to SO to be considered for the position. However, only those candidates whose
names appeared on the Internal Certificate after submitting their formal applications through
USAJOBS or CHART were eligible for hire as the Lead Man.

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placed on the Internal Certificate.5 In addition, the AJ noted that the record was devoid of
evidence of similarly situated applicants being treated more favorably than Complainant (i.e.,
there is no evidence that any non-Black candidate who gave their resumes to SO but also failed
to apply on USAJOBS or CHART made it to the Internal Certificate). We further find that there
is insufficient evidence of pretext as we find the record devoid of evidence that any of the
responsible management officials held discriminatory animus toward African-Americans.

Moreover, while it not necessary to determine if Complainant would have been selected had he
applied through USAJOBS or CHART, we agree with the AJ that Complainant failed to
establish that his qualifications were plainly superior to SE. Rather, the evidence in the record
established that LM and S1 ranked Complainant second to last among all the applicants and both
agreed that Complainant’s personality was not ideal for a Lead Man position.

CONCLUSION

Accordingly, 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 action which adopts the
AJ’s finding that Complainant failed to present sufficient evidence to warrant a hearing or prove
his claims as alleged.

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),

5 The AJ further noted that since Complainant did not apply through USAJOBS or CHART, an
analysis of whether HR harbored discriminatory animus with respect to his decision as to which
applicants were found qualified was unnecessary because it is irrelevant to this claim.
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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.

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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

April 25, 2018
Date