Harley J.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.Download PDFEqual Employment Opportunity CommissionApr 26, 20180120162025 (E.E.O.C. Apr. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harley J.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency. Appeal No. 0120162025 Hearing No. 531-2016-00167X Agency No. 57-2015-00196 DECISION On June 1, 2016, 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 February 3, 2016, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. The Agency advertised for a Mechanical Engineer under Vacancy Announcement Number NISTEL-2015-0024, from April 22 to April 29, 2015. The position was listed as a full-time term appointment, not to exceed two years. The vacancy announcement stated the notice was issued 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. 0120162025 2 under direct hire authority to recruit new talent to occupations for which the Agency’s National Institute of Standards and Technology (NIST) has a severe shortage of candidates. Vacancy Announcement Number NISTEL-2015-0024 stated “[t]he incumbent will conduct research on smoke transport in compartment fires, and model the response of smoke detectors to improve the predictive capabilities of smoke detector activation in computer fire models.” The vacancy noted research would include “characterizing smoke sources (smoke production and particle sizes), tracking smoke movement, size evolution and deposition with various measurement equipment, and characterizing smoke detector response under varying environmental conditions. Computer fire models, including computational fluid dynamics codes, will be used to assess the predictive capabilities of smoke deposition and smoke detector activation against experimental results.” A total of 32 applicants, including Complainant, applied for the position. A Direct Hire Certificate shows that 15 candidates, including Complainant and the Selectee, were referred to the Selecting Official for consideration. The Selectee’s name was handwritten at the end of the certificate while the other 14 names were on the certificate typed. The Selectee was selected. On July 13, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (52), and disability (dyslexic- disgraphia)2 when: He was not selected for the position of Mechanical Engineer, ZP-0830-III, as advertised under Vacancy Announcement NISTEL-2015-0024. 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 sent a request for a hearing to the EEOC’s Baltimore Field Office; however, he did not send a copy of his hearing request to the Agency, as instructed. The AJ dismissed Complainant’s request for a hearing due to his failure to timely notify the Agency of the hearing request. The Agency issued a final decision on February 3, 2016, concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged either under a disparate treatment or disparate impact theory. 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, 2 Complainant subsequently withdrew the basis of disability discrimination. 0120162025 3 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”). At the outset, we note that Complainant does not challenge the definition of his complaint. Complainant also states on appeal that he no longer wants a hearing on his case. Upon review, we find the record in the present case is adequately developed. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Complainant stated that he was discriminated against when he was not interviewed or selected for the Mechanical Engineering position. Complainant stated that his perception was that the Selecting Official had already made up his mind about who he was going to select prior to the announcement of the job. Complainant stated he believed the hiring practices at NIST have a disparate impact on African- Americans and those over 39 years of age. Complainant stated he spent the summer of 2010 at the Agency and was told by some Agency employees that selections for research positions came 0120162025 4 primarily from individuals who were Visiting Scholars and had worked at NIST as undergraduate or postdoctoral students. Complainant stated that in order to gain a position as a Postdoctoral Researcher at NIST, one must be a recent PhD recipient (with the past five years). Complainant claimed according to the Chronicle of Higher Education, the average age of a PhD recipient is 34 years and that hiring “Postdocs” discriminates against people over the age of 39. Complainant also claimed that to obtain a position as a Visiting Scholar, one almost always needs to be part of a “network.” Complainant claimed that networks are often built within racial groups. He alleged that as there are few African-American PhDs in science, African-Americans are often excluded. Additionally, Complainant claimed his qualifications were significantly better than those of the Selectee. Complainant noted that the Selectee spent two years working at NIST and just completed her PhD in May 2015. Complainant stated the duties of the position in question included creating predictive mathematical models for smoke creation and transport. He states he created and published “the most comprehensive gas transport simulation in the literature.” He states that while the position only required 60 semester hours of STEM course work and one- year of experience, he has more than 200 semester hours and more than 15 years of experience, plus five publications, in reactive gas transport. He states, in contrast, the Selectee has no publications and no experience in the area of gas transport. He states the job duties of the position include mathematical simulation and that is not the Selectee’s area of expertise. He says the Selectee’s area of expertise is heat transfer and that she has worked on problems in jets and rockets. Complainant states that the advantage the Selectee has over him is that she has been employed by NIST for two years prior to graduation and had built a NIST network system. In addition, he notes that the Selectee’s name was not typed on the list but handwritten as an “add on” at the end of the Certificate. Complainant states this lead him to believe that the Selecting Official wrote in the name of the person he wanted. We find that the Agency articulated legitimate, nondiscriminatory reasons for its hiring decision. The Human Resources Specialist (HRS) stated she worked with the Selecting Official in preparing the Vacancy Announcement. The HRS stated that NIST’s Direct Hire procedures allowed for receipt of “paper” applications for this position. She said prior to closing, the Agency received 31 applications generated from the automatic system and one “paper” application submitted directly from an applicant to the hiring manager. The HRS stated that 15 applicants (14 automatic and the one “paper” application) met the basic qualifications and specialized experience for the advertised position. The HRS stated that NIST’s Direct Hire procedures, along with OPM’s Direct Hire Guidance and other relevant guidelines do not require the ranking and rating of candidates when issuing the Certificate of Eligibles to selecting officials. The HRS prepared one Certificate of Eligibles for the Selecting Official. She stated the list of the 15 candidates reflected in the Certificate contained 14 names which she printed directly from the automated system, and that she handwrote the name of the candidate whose “paper” application was received directly. 0120162025 5 The Selecting Official stated that NIST was authorized to use direct hire authority to recruit new talent to occupations for which it has a severe shortage of candidates. He explained that in January 2015, his Division Chief was contacted by a former NIST employee (the Selectee) who had left the Agency to complete her PhD. The former employee expressed interest in working for NIST and inquired about the possibility of coming back to the Agency. The Selecting Official stated at the time, they told the former NIST employee that the “Postdoc” positions were closed and she would have to wait for the next competition to apply. He stated that this person had “the right type of experience/knowledge/talent we were looking for so we discussed bringing her in using NIST’s direct hiring authority procedures.” He stated that before exploring the use of that authority any further, they invited the former NIST employee to make a presentation at one of their technical seminars. The Selecting Official explained that this seminar was attended by four of the five Group Leaders and the Division Chief. He stated that at the Group Leaders meeting later that week, they had a discussion among the Group Leaders and Division Chief regarding hiring, and the consensus was that the former employee possessed the right set of skills/leadership to make a significant contribution to their division and they wanted to bring her back. He then contacted the Administrative Officer and the HRS to initiate the process. The Selecting Official wrote a memorandum to the HRS on April 3, 2015, describing their requirements and requesting the use of Direct Hire Authority to recruit and fill the position of Mechanical Engineer. The Selecting Official worked with the HRS in developing the vacancy announcement. He states that on April 30, 2015, he was issued the Direct Hire Certificate. He states the Certificate contained the names of the candidates generated from the computerized system and that he printed out the list and then added the name of the Selectee in handwriting at the end of the Direct Hire Certificate. He stated this was within the requirements specified in the Direct Hire procedures and that under the Direct Hire procedures there is no ranking/rating of the candidates and the selecting official can choose anyone from the certificate without interviewing any of the applicants. With respect to the qualifications of Complainant and the Selectee, the Selecting Official stated that while Complainant may be highly published, and there are areas at NIST where this type of experience would be highly essential, they were looking for a scientist with experience in conducting experimental heat transfer and particle deposition studies, experience using computational fluid dynamics computer models to assess heat and mass transfer effects in high temperature flows, and experience in characterizing flame sooting properties. The Selectee worked at NIST from 2009 to 2011 and the Selecting Official said that she had developed a very good track record while at the Agency. The Selecting Official said that when she left to continue her education, she left on excellent terms. Further, he added that the Selectee also possessed the type and level of skills and specialized experience needed to fill the position in his group. The Selecting Official stated that the Selectee had the right mix of knowledge/experience/leadership skills for the advertised position. In the present case, a review of the applications by both Complainant and the Selectee show that they were both strong candidates. Despite his claim to the contrary, Complainant has not shown that his qualifications were observably superior to those of the Selectee. Complainant also 0120162025 6 contends that the Selecting Official preselected the Selectee. Based on the record, it does appear that the Selecting Official preselected the Selectee over the other applicants. Yet, preselection per se is not direct evidence of discrimination. The Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII, so long as they are not also premised on some basis which is unlawful under Title VII, such as race or age. In the present case, Complainant has not shown that the Agency’s actions were a pretext for prohibited discrimination. Next, we address Complainant’s claim of disparate impact. To establish a prima facie case of disparate impact, a 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, a 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 a 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, Complainant v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). Upon review, the Commission finds that Complainant did not provide any evidence, beyond mere assertions, to support an actionable disparate impact claim. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 0120162025 7 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. 0120162025 8 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 26, 2018 Date Copy with citationCopy as parenthetical citation