Edmond C.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

0120181252 (E.E.O.C. Aug. 14, 2019)

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

Edmond C.,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120181252

Hearing No. 443-2017-00141X

Agency No. 413416009

DECISION

On February 27, 2018, 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
April 26, 2018, final decision (FAD) 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 worked as an Industrial
Equipment Mechanic, WG-5301-11, at the Agency’s National Guard Bureau, Air National
Guard, Civil Engineering Technical Service Center facility in Minot, North Dakota.

On October 3, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 when Complainant was
not selected for the position of Supervisory Facility Operations Specialist, GS-1640-11, under
Announcement Number 41-AFPC-l687293-651689-JEH

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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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request.

Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision found that Agency officials articulated legitimate, nondiscriminatory reasons for its
actions, namely that the Selectee (S: Caucasian) was better qualified than Complainant. The
decision further found that Complainant failed to establish that the Agency’s articulated reason
was a pretext and concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

The instant 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”).

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action 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. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis 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
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actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
complainant established his prima facie case of discrimination.

We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Selecting Official (SO: white) averred that:

I reviewed and considered the resumes primarily for experience review, and
presentation, as communication skills are critical to the position. [S]’s resume was
clear, concise and very well-written, while [Complainant’s] resume seemed just
thrown together (in that it contained grammar, punctation and spelling errors and
information that was a bit ambiguous). . . . [S] had a broader background than
[Complainant] overall, and the work he was performing at the time of the
selection process more directly related to the type of work that would be
performed by whoever was selected for the supervisory position being filled. The
position was responsible for managing an industrial shop and supporting facility
management throughout the ANG, and [S] had already served in a facilities
management roles [sic] (and was therefore involved in the day to day operations
of the Civil Engineering), [Complainant] did not have that type of supervisory or
Governmental facilities management experience. Further, communication is a
critical component of the position. As indicated previously, based on the
candidates' resumes and interviews, [S]'s written and verbal communication skills
were far superior to those of [Complainant]. I think it is also noteworthy to
mention that [S] had been awarded the 2012 Civil Engineer Manager of the Year
by the Glohal Strike Command. . . .

While [Complainant] had far more direct aircraft arresting systems experience
than [S] I disagree with [Complainant]'s contention that [S] had no experience
with aircraft arresting systems or familiarity with such systems. While on active
duty, [S] had worked in a Power Production Shop that shares some similar roles
of those performed in our Industrial Shop. During that time, he had worked on
generators and mobile aircraft arresting systems. He also worked in the Aircraft
Ground Equipment Shop, where he worked with power generation and aircraft
support equipment (which is comparable to some of the types of shop equipment
used in our Industrial Shop) and a little more on electrical and electronics systems
which better support the Industrial Controls portion of the position. Therefore, it
is not correct to say he had no familiarity with such equipment and systems. In
regards to Aircraft Arresting systems, the technical experience component of the
position makes up about 25% of the position’s responsibilities (as detailed in the
Position Description itself). The other 75% of the duties and responsibilities
consist of planning, organizing, supervising, facilities management, and it was felt
that [S] had far more applicable experience than [Complainant] in those areas.

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SO further averred that he did not know the race of the selectee at the time and did not know of
Complainant’s prior EEO activity. The members of the Interview Panel all made essentially the
same or similar statements as SO. The Agency having articulated legitimate nondiscriminatory
reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of
the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for
discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we
find that Complainant has failed to meet this burden

We note that where, as here, the alleged discriminatory action is non-selection, pretext may be
found where the complainant's qualifications are demonstrably superior to those of the selectee.
Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose
among qualified candidates based on its discretion, provided that the decision is not based upon
unlawful criteria. See Burdine, at 259; Vanek v. Dep't of the Treasury, EEOC Request No.
05940906 (Jan. 16, 1997). It is not the function of this Commission to substitute its judgment for
that of management officials who are familiar with the needs of their facility, and who are in a
better position to make decisions, unless other facts suggest that proscribed considerations of
bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No.
05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy,
EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-
guessed by the reviewing authority absent evidence of unlawful motivation).

Complainant averred that:

In relation to Facility Operations GS-12 or GS-11 level I more than qualify
because I have currently own [sic] and operated a Civilian Property Management
Business since 1995. My level of expertise equates to the Military Facility
Operation Management that [S] does not possess. Furthermore, every aspect of
facility operations, as it relates to environmental (Asbestos), Mechanical (HV
AC), Plumbing, and electrical and Liquid Fuel distribution are part of all the
experience, qualifications and certification I currently possess and [S] does [sic]
not at the time of the interview. Moreover, he had never worked with Aircraft
Arresting Systems and had no familiarity with our systems. He had no experience
performing (or Certifications to perform) the type of heavy equipment and
installation work that occurs on the runway with an AAS system. In contrast, I
had all of the knowledge, experience, and certifications needed to perform all
such work due to my 15 years working in the Aircraft Arresting System area. I
note that after [S] was selected, he actually had to attend the class that I teach
about Aircraft Arresting Systems. He also frequently had to come to me for
information and assistance about how to repair and operate equipment due to his
lack of familiarity with the area.

We note, however, that SO already addressed the differences with regard to Complainant and S’s
relative knowledge and experience with AAS (see SO’s response, above). A review of the
candidates’ respective application packages reveals that S’s resume was more impactful and
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easier to understand than that of Complainant. S’s resume contained fewer grammatical errors
than Complainant’s and uses action verbs that make S appear more pro-active and dynamic.
Complainant’s resume starts with his private sector experience, and it lists his current Federal
position as Industrial Equipment Mechanic. S’s resume starts with his current Federal position,
listed as Supervisory Supply Technician, which sounds more impressive. Complainant averred
that he included his private sector experience because he believes it demonstrates his managerial
abilities, but the section is the most prominent in his resume and includes irrelevant detail like
the fact that one his businesses “deals in domestic and foreign autos.” While both candidates
have impressive credentials, the record does not show Complainant’s qualifications to be
demonstrably superior to those of S.

Complainant next argues that he applied for the same position when it was first posted as a GS-
12 position and then again when it was subsequently posted as a GS-11 position. He maintains
he was interviewed both times but each time no selection was made, ostensibly because none of
the candidates possessed “the skill set being sought.” Complainant, however, maintains he did
possess the relevant “skill set” and that the position was re-posted a third time with:

[N]ew requirements . . . [that] allowed a [sic] entire new group of candidates to
qualify, including [S], who was already well known to members of the selection
board and not part in any of the previous selectees list. [S] was then selected for
the job despite having no relevant experience in the Aircraft Arresting System
Area.

Complainant, however, has not included the postings for these two earlier positions showing that
he did indeed possess “the skill set being sought.” While Complainant believes his nonselectin
was due to discrimination and/or reprisal, Complainant has not met his burden of establishing, by
a preponderance of the evidence, that the Agency’s articulated reason for its action was a pretext
or that management officials harbored any racial or retaliatory animus against Complainant.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown that discrimination or
reprisal occurred, and we AFFIRM the FAD.

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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.
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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

August 14, 2019
Date