Gino T.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

0120172893 (E.E.O.C. Dec. 21, 2018)

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

Gino T.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120172893

Agency No. 150049OR

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the July 25, 2017 Final Agency
Decision (“FAD”) 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 worked as a General Engineer,
GS-14, Facility Operations Division, at the Agency’s Oak Ridge Office of Environmental
Management (“OERM”) in Oak Ridge, Tennessee.

On May 4, 2015, Complainant filed an EEO complaint alleging harassment and discrimination
by the agency on the bases of sex (male), age (61), and reprisal2 when:

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.

2 EEO activity associated with Agency Case No. 130118OR, which was filed by Complainant’s
wife (“W1”). See Vickie P. v. Dep’t of Energy, EEOC Appeal No. (Feb. 25, 2016)
reconsideration denied EEOC Request No. 0520160253 (Aug. 17, 2016). The EEO statutes
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1. On November 3, 2014, he was required to requalify as a Facility Representative
even though his Technical Program Manager Qualifications were still current and
no other Facility Representative had to go through two Oral Boards,

2. On January 6, 2015, he learned he was not selected for the position of Deputy
Director of the Facilities Operations Division (“FOD”), OREM (Vacancy
Announcement No. DOE15OREMMP4544A), and,

3. On or about February 9, 2015, the FOD Director informed him that he decided to
move Complainant’s office to the 3019 facility instead of allowing Complainant
to move to the 2260 facility, where his two predecessors, as well as other Facility
Representatives worked, to isolate him from his coworkers.

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 EEOC
Administrative Judge (“AJ”). Complainant requested a FAD instead, which the Agency issued
pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

Complainant identifies the responding management officials as his first level supervisor, the
Director, FOD, (45, male, no prior EEO activity) (“S1”), the Manager, OREM, (55, female, no
prior EEO activity) (“S2”), and S2’s direct report, who was also S1’s supervisor, the Deputy
Manager of OREM (male, approximately 50, EEO activity unknown) (“S3”).

On August 3, 2013, Complainant’s wife (“W1”), a General Engineer, GS-13, in OREM’s
Performance Assurance Division, initiated EEO Counseling, alleging age and sex discrimination
after she learned she was not selected to a position she applied for. W1’s complaint named S2,
the selecting official, and S3 as the RMOs. An EEO Counselor interviewed S2 and S3 regarding
her allegation in September 2013. W1 filed a Formal Complaint on November 5, 2013, and an
EEO Investigation was conducted between December 2013 and February 2014. At W1’s
request, the Agency issued a FAD. As the FAD determined that W1 failed to prove
discrimination as alleged, W1 appealed to this Commission. The matter remained pending
throughout the relevant time frame for Complainant’s complaint. Complainant alleges that S2
and S3 were motivated by retaliation based on W1’s prior EEO activity, but states that S1 was
likely unaware of the matter because he was not involved.

prohibit discrimination against someone closely related to or associated with an individual who
has engaged in protected activity. See, e.g. EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir.
1993) see also EEOC Enforcement Guidance on Retaliation and Related Issues, (Aug. 29, 2016,
available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm (replacing the EEOC
Compliance Manual Section 8: Retaliation (1998)).

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Nonselection

In or about 2013, Management initiated a revision to the organizational structure by including 4
deputy director positions. Complainant alleges that the resulting “new” position of Deputy
Director, FOD, was simply the newest iteration of the position he had held since 1999.
Complainant argues that the Agency periodically changed his title to “align with organization
charts over the years” but ultimately, his duties remained the same. For instance, Complainant’s
past titles included Facility Representative Group Leader, Team Leader, and Senior Facility
Representative, yet all had nearly identical position descriptions. We note that S1 testified that
Complainant did not have any direct reports since 2005, when the position of Team Leader was
abolished, and Complainant became a Facility Representative.

On October 29, 2014, a vacancy announcement for Deputy Director of the Facilities Operations
Division (“FOD”), was posted. Unlike prior reorganizations, S2 determined that the newly
created Deputy Director positions should be announced as competitive job vacancies. In the
meantime, the Facility Representatives, including C1 and Complainant, rotated 120-day details
in the FOD Deputy Director position. According to Complainant, S1 led him to believe that that
he would be the next Deputy Director, FOD. Complainant also states that when he asked S1 why
the other Facility Representatives were rotated through the position, S1 responded that it was a
“formality.” Regardless, Complainant applied for the position, and was selected as one of six
candidates to be considered for the position.

S1, as the selecting official, convened a Review Committee consisting of a lead reviewer (“R1”)
(female, 42, EEO activity unknown), Portfolio Federal Project Director/General Engineer, and
two other reviewers, “R2” (male, 57, EEO activity unknown), Deputy Director, Engineering,
Safety and Quality Division, and “R3” (male, 64, EEO activity unknown), Senior Cost
Estimator, GS-14. The Committee submitted the names of the first and second highest scoring
candidates, Complainant and C1 respectively, to S1 for review. S1 determined that he wanted to
prioritize “leadership” and requested rescoring by the Committee, with a metric that weighted the
questions most relevant to leadership. Again, Complainant received the highest score, and C1
received the second highest score. S1 drafted five interview questions specific to leadership
qualities and their experiences during their 120-day details as the Deputy Director, FOD. Based
on the interviews, S1 selected C1 for the position of Deputy Director, FOD. S2 signed off on the
decision, but testifies that she did not take part in the selection process.

Once the Deputy Director, FOD was filled, C1 assumed Complainant’s supervisory duties,
although Complainant maintained his title as Senior Facility Representative. In addition, C1
became Complainant’s first level supervisor, and S1 became Complainant’s second level
supervisor. Believing his years of experience and engineering background made him far more
qualified than C1, Complainant initiated the instant complaint.

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Requalification/Recertification

Throughout the relevant time frame, Complainant maintained an up to date certification for
Technical Program Manager Qualification (“TPMQ”). His Facility Representative (“FR”)
certification lapsed 7 years earlier. Complainant explains that his previous first level supervisor,
S1’s predecessor, advised him to obtain TPMQ certification instead of FR certification when
Complainant assumed a supervisory role, and that based on Agency policy, the TPMQ
certification required the equivalent FR qualifications in addition to qualifications specific to his
supervisory role. Complainant regularly prepared subordinates for obtaining their FR
certifications, and based on nearly two decades in the FR role, Complainant was acutely aware of
the certification requirements for a Facility Representative. Complainant alleges that S2’s true
purpose in requiring FR recertification was to humiliate him and undermine his professional
credibility.

On August 28, 2013, Complainant was notified by S2 and S3 that his FR certification had lapsed,
and he needed to recertify. Neither S2 nor S3 mentioned Oral Boards, which were an initial
qualification requirement, but not necessary for recertification. Management would not accept
Complainant’s current TPMQ certification in lieu of the FR certification. On March 31, 2014,
Complainant completed his Interim/Reactivation Qualification Card.

On May 19, 2014 (5 days after W1 submitted her request for a FAD) Complainant alleges that
S1 informed him that S2 changed his Reactivation Qualification to a Full Qualification Card,
requiring him to complete an Oral Board Examination (referenced as “Oral Boards”).
Complainant’s attention was diverted from his work responsibilities as he prepared for the Oral
Board examination, which he repeatedly explained to S1 and S2 was not required under Agency
regulations. Nevertheless, Complainant successfully completed his Oral Board before a panel
that included S1 and S2, on November 3, 2014.

Soon after, S2 and other management officials made changes to FOD (as opposed to regulatory
or Agency-wide) rules to prevent future employees with lapsed certifications from having to
retake Oral Boards. Complainant also contends that S2 deliberately timed the change to take
effect after Complainant completed his Oral Boards, but before C1, whose certification also
lapsed for over 18 months, would have been required to undergo the same humiliation and
inconvenience, and contributing to his belief that S2 targeted him for harassment.

Office Relocation

After C1 was selected for the Deputy Director position, Complainant was scheduled to move into
her previous office in Facility 2660 (“F2660”). In February 2015, S1 informed Complainant that
S2 decided that Complainant, as Facility Representative for Facility 3019 (“F3019”), should be
assigned to F3019 full time, instead of Facility 2660 (“F2660”).

By Complainant’s account, F2660 was far preferable and located within walking distance of
F3019. As a newer building, F2660 had air conditioning, and reliable internet access.
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The two previous Facility Representatives for F3019, including C1, were provided an office in
F2660, with an additional “convenience” office in F3019. According to Complainant, 5 other
Facility Representatives worked primarily out of F2660, providing a more collegial environment.
Complainant contends that the move was intended to inconvenience and isolate him.

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”).

As a preliminary matter, Complainant’s argument on appeal raises questions of credibility
related to both S1 and S2’s testimony. For instance, he disputes S1’s statements that he prepared
Complainant for the Oral Boards, and alleges that S1 frequently made statements such as “[S2]
had it out for you.” Upon review, we find that the record is sufficient for rendering a decision, as
the Agency developed an impartial and appropriate factual record that allows us to draw
conclusions as to whether discrimination occurred. 29 C.F.R. § 1614.108(b). If Complainant
wanted an opportunity to develop the record through discovery and cross examination of
witnesses, he should have requested a hearing before an AJ. See Tommy O. v. United States
Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Alleged credibility issues will not be
considered in this decision. EEO MD-110, at Ch. 6, § XI and Ch. 7, §I.

Claims 1 & 3: Harassment

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. As this is a reprisal allegation, Complainant
must also prove that the conduct was taken because of his race, sex or in retaliation for W1’s
prior EEO activity. Only if Complainant establishes both elements, hostility and motive, will the
question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC Notice 915.002 (June 18, 1999).

Managerial decisions and personnel actions that are disadvantageous to the employee do not
automatically equate to harassment creating a hostile work environment. See Arnold v. United
States Postal Serv., EEOC Appeal No. 01A24022, page 4 (Oct. 9, 2003).
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Moreover, it bears noting that an agency is not required to refrain from non-discriminatory
personnel actions it would otherwise take simply because the employee has engaged in EEO
activity. See Sotomayer v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).

Claims 1 and 3 (FR recertification and office relocation) concern managerial decisions and
personnel actions. The record reflects that the Department and OREM requirements require
Facility Representatives to get recertified every 5 years. S1 conceded that FOD had “some
discretion” over whether to hold an Oral Board for recertification, but testified that S2 and S3
required Complainant to take the Oral Boards because Complainant had 7 to 8 years away from
field work, whereas the other Facility Representatives “were all more current when they
recertified.” S1 testified that he intended to send Complainant out in the field as a Facility
Representative, and that the TPMS, which was sufficient for an FR Team Lead, was not
sufficient for an FR in the field. Likewise, S1’s explanation that the offices in Complainant’s
preferred location resembled a “social club” atmosphere, and that Complainant was the only FR
assigned for the facility where his new office was located, reflect personnel and managerial
considerations.

Complainant argues that S1 and S2 made a concerted effort to harass him by singling him out in
a manner that undermined his supervisory authority and reputation among his subordinates and
peers. It is undisputed that Complainant was the only employee ever to be required to take the
Oral Boards again after already passing them for his initial certification. Federal regulations did
not expressly require an additional Oral Board Examination, and after Complainant’s exam had
been completed, the Agency changed its policy so it would no longer be a requirement for
employees in similar situations in the future. Complainant further argues that Management
effectively ostracized him, when it moved his office. Moreover, both alleged harassing actions
unnecessarily inconvenienced him by requiring him to spend time preparing for his Oral Boards
and relegating him to a building with less reliable internet service.

Even considered together, along with the totality of the circumstances, the actions described in
Claims 1 and 3 consist of managerial and personnel decisions made in conjunction with a change
in Complainant’s job responsibilities. While understandably frustrating, they do not constituted
harassment.

Claim 2: Disparate Treatment

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).
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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).

Where, as here, the alleged discriminatory action is nonselection, 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 Treas., 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 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). Furthermore, An Agency
has even greater discretion when filling management level or specialized positions, such as the
FOD Deputy Director position at issue in the instant complaint. Wrenn v. Gould, 808 F.2d 493,
502 (6th Cir. 1987).

In the present case, S1, in choosing between two qualified employees, chose the individual that
he felt would be better suited for the job. Here, the Agency’s legitimate nondiscriminatory reason
for selecting C1 over Complainant was that she had a better interview with S1, and her variety of
engineering experience and leadership roles made her the better qualified candidate.
Complainant contends that his qualifications were plainly superior because he had already been
performing most the Deputy Director duties for years. However, a person’s length of experience
does not necessarily mean he is better qualified. Macready v., EEOC Appeal No. 01991433
(2002). S1 acknowledged that Complainant had a decade more experience as a Facility
Representative than C1, but explained that C1 held a variety of experiences conducive to the
Deputy Director position, which “includes a variety of work.” For instance, the position would
be responsible for performance reviews, time cards, writing letters and reports, working with
contractors and working with a budget, as well as “meetings with contractor management to
discuss performance and execution of work.”
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In response to S1’s stated emphasis on leadership skills, Complainant argues that his leadership
skills were demonstrably superior to those of C1 as well. When S1 asked the Review Committee
to re-score the applications after placing additional weight for leadership-related questions,
Complainant still received the highest score. However, S1 testifies that “there is no rigor or
formality in [Complainant’s] leadership. This has created [unspecified] difficulties for the
Agency.” He also testifies that C1 provided specific examples of a variety of leadership roles,
including serving as the chair of a source evaluation board to select a contractor, and “a lot of
community leadership experience.” S1 notes that he previously rewrote procedures that
Complainant turned into him that did not meet DOE standards and that Complainant “manages
very well by relationships, but does not do a good job on documentation.” Further, during the
interview, Complainant mentioned that he (not S1) should have received the Director, FOD
position when they both applied in or around 2011, indicating (in S1’s opinion) that he simply
wanted S1’s job. By contrast, C1 expressed enthusiasm for the position, a willingness to support
S1’s initiatives in his capacity as Director, and had ideas for what she would do differently in the
position. On appeal, Complainant disputes C1’s characterization of the interview, but does not
provide sufficient evidence to establish that the Agency’s legitimate nondiscriminatory reasons
were pretext for discrimination.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding that Complainant failed to establish
discrimination 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),
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.
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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

December 21, 2018
Date