Erick K.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionOct 14, 20160120152389 (E.E.O.C. Oct. 14, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick K.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120152389 Hearing No. 570-2013-00934X Agency No. AREUANS12OCT04343 DECISION The Commission accepts Complainant’s appeal from the Agency’s June 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Family Advocacy Manager/Social Worker at the Agency’s U.S. Army Health Clinic in Vilseck, Germany. In late-June 2009, Complainant applied for a Supervisory Social Worker (Family Advocacy) position announced under Job Announcement No. EUJJ12726235689646R. Complainant was found qualified and one of 12 candidates placed on the Merit Promotion Certificate of Eligibles. The selecting official (SO) reviewed the candidates’ applications and decided to interview Complainant and one other candidate. On or about August 15, 2012, a seven-person interview panel interviewed Complainant and the Selectee asking the candidates the same questions. The interview panel provided feedback to SO, and SO conducted background 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. 0120152389 2 reference checks. After reviewing the interview panel’s feedback and the candidates’ background references, SO decided to select the Selectee. On September 26, 2012, Complainant was notified that he was not selected for the position. On December 9, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (67) when on September 26, 2012, personnel notified him via USAJOBS that management did not select him for the Supervisory Social Worker (Family Advocacy), GS-0185-13, position in Vilseck, Germany.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on June 3, 2015. In the decision, the AJ initially assumed arguendo that Complainant established a prima facie case of discrimination and found that management articulated legitimate, nondiscriminatory reasons for not selecting Complainant.3 In particular, SO stated that the Selectee provided better answers to interview questions than did Complainant, in that the Selectee’s answers were more specific and positive. SO noted that Complainant’s answers were more vague, pessimistic, condescending, and negative toward the Agency in general. SO added that he received only positive feedback from the Selectee’s references, whereas Complainant’s current and former supervisors told him that they would not recommend Complainant for the position. In attempting to establish that the Agency’s reasons for its actions were pretextual, Complainant argued that the Selectee was not minimally qualified for the position because the Selectee did not have a Basic Life Support certification, which the Complainant did have. However, the AJ determined that Complainant failed to establish that the certification was required for this position. Additionally, Complainant argued that he had far more experience with the Family Advocacy Program and as a supervisor. The AJ noted that the Selectee had been working as an Acting Program Manager in Family Advocacy at the time of the selection, and had several years of social worker and supervisory experience prior to holding that position. The Agency acknowledged that Complainant had more technical experience with Family Advocacy and in supervision than the Selectee. Still, SO determined that 2 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. Complainant raised no challenges to this dismissal before the AJ or on appeal; therefore, the Commission will not address the claims in this decision. 3 The AJ appears to have erroneously failed to address Complainant’s race as a basis of discrimination in her decision. Nonetheless, the Commission finds the exclusion of the basis of race to be harmless error as the record in the present case is adequately developed for the Commission to address this claim. 0120152389 3 Complainant’s inferior interview performance and poor interpersonal skills as reported by two of his three professional references, led to his conclusion that Complainant was not the best applicant for the position. The AJ concluded that Complainant failed to show that the Agency’s reasons for not selecting him were pretext for unlawful discrimination. As a result, the AJ found that Complainant had not been subjected to discrimination as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency. Complainant argues that the interview process was flawed and violated Federal rules. Additionally, Complainant challenges the character references given by his supervisor and former supervisor. Complainant believes that SO structured and designed the selection process to get the result he wanted. Finally, Complainant contends that he should have been selected because he was better qualified and had more significant experience. Accordingly, Complainant requests that the Commission reverse the final order. 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. Disparate Treatment 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). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120152389 4 In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, the Commission finds that Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. More specifically, SO affirmed that he determined the Selectee was the best candidate for the position based on feedback from the interview panel and statements from both candidates’ references. ROI, at 304. SO stated that the Selectee had sufficient experience to be effective, possessed sound clinical skills, and provided a positive presence and responses during the interview process. Id. By contrast, panel members found Complainant to be negative, pessimistic, condescending, vague, and not fully understanding of the Program’s records system. Id. at 304, 314-28. SO added that Complainant’s responses during the interview lacked specificity, and he communicated a great deal of what seemed liked dissatisfaction, frustration, and negativity towards the current system. Id. at 307. SO noted that Complainant has had conflicts with each supervisor he has had during his tenure at the facility. Id. at 303. In addition, SO stated Complainant was unable to articulate specific issues and/or action plans to improve the current system during his interview. ROI, at 307. On the other hand, the Selectee effectively demonstrated his management philosophy, communicated how he would establish himself as a supervisor and subject matter expert, and identified his role in ensuring that the program was in compliance and staff felt satisfied in their positions. Id. Furthermore, SO confirmed that he received positive references from the Selectee’s former supervisors, but negative responses from Complainant’s current and former supervisors. Id. at 307-08. As a result, SO determined that the Selectee was the best candidate for the position and selected him. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his non-selection claim. Complainant argues that he was the better qualified candidate based on his over 30 years of experience. Further, Complainant contends that the selection officials placed too much weight on the interview process and interpersonal skills in their selection decision to justify not promoting him. The Commission notes, however, that number of years of experience, alone, is insufficient to establish that a candidate's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). SO emphasized that while he had less direct experience than Complainant, the Selectee communicated a sense of commitment, positive energy, and a willingness to learn. ROI, at 304. These factors as compared to Complainant’s negative references and reports of difficult interactions with supervisors weighed the decision heavily in favor of the Selectee. Id. 0120152389 5 The Commission finds that Complainant failed to show that his qualifications for the position at issue were plainly superior to those of the selectee. In this case, the selectee had attributes that justified his selection, and the selection officials affirmed that they believed he was better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Construing the evidence in the light most favorable to Complainant, the Commission finds that the record lacks evidence that the Agency’s selection or the selection process was tainted by discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 0120152389 6 received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 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 October 14, 2016 Date Copy with citationCopy as parenthetical citation