Horace A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 22, 2018

0120162277 (E.E.O.C. Mar. 22, 2018)

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

Horace A.,1
Complainant,

v.

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

Appeal No. 0120162277

Agency No. 15-44466-01418

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 4, 2016, finding no discrimination
concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rigger Work
Leader, WL-5210-11, with the Trident Refit Facility, Waterfront Support Department, Crane
Shop, Kings Bad, Georgia. On May 20, 2015, Complainant filed his complaint alleging that:

(1) He was discriminated against based on race (African-American) and age (over 40)
when on February 21, 2015, he was not selected for the position of Crane Supervisor,
WS-5701-11; and

(2) He was discriminated against in reprisal for prior EEO activity when on April 21,
2015, he was issued a Letter of Caution for disrespectful conduct.

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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After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency then issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Regarding claim (1), the Head Superintendent for Crane and
Rigging Operations Division indicated that he wrote the ranking and rating criteria for the
position at issue based on previous hiring of supervisors in his division and the knowledge,
skills, and abilities (KSAs) needed to perform the primary task of the position. Therein, it
specifically indicated that in order to be eligible for the position at issue, applicants were
required to have experience in the lifting and handling profession a minimum of eight years. The
Superintendent, denying the eight-year lifting and handling requirement was included to ensure
two selectees made the cut for an interview, stated that the position criteria was similar to the
rigger supervisor position filled earlier. He indicated that he was not on the panel.

The Selecting Official (SO) indicated that he received the certificate of eligibles, which listed
seven applicants, including Complainant, from Human Resource Office and he provided the list
to the ranking panel. The SO stated that the criteria, described earlier in this decision, was
established prior to his receipt of the certificate. Three ranking panelists stated that they all
screened out Complainant based on his resume because he did not meet the requirement of eight
years of lifting and handling experience set forth in the position criteria and he thus was not
referred for an interview. The SO stated that he selected two selectees who had the highest
KSAs scores (108 for selectee #1 and 96 for selectee #2) and interview scores (174 and 128,
respectively) with total scores (282 and 224, respectively).

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a pretext for discrimination. Furthermore, Complainant failed to show
that his qualifications for the position were plainly superior to the selectees’ qualifications. See
Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).

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Regarding claim (2), Complainant’s supervisor (S1), who was selectee #1 above, indicated that
S1 issued Complainant the letter of caution at issue due to his disrespectful conduct on April 21,
2015. S1 stated that at the relevant time, he was not aware of Complainant’s prior EEO activity.
Specifically, S1 indicated that at the relevant time, S1 called Complainant about holdover
overtime for the afternoon but before S1 could finish S1’s conversation, Complainant hung up
the phone. Complainant indicated that S1 told him he had overtime and he hung the phone up
and S1 never said he needed to speak to someone else. We note that Complainant does not
dispute the fact that he did hang up the phone before S1 did or before S1 ended S1’s phone call.

S1 further indicated that when S1 called back and was talking to another employee, S1 could
hear Complainant in the background saying to everyone why S1 was bugging him. Complainant
stated that he did not say anything to S1 or about S1 at the relevant time. Complainant
acknowledged that he was having a conversation with someone else but S1 did not know what he
was talking about. Complainant did not specify what he was indeed talking about at the relevant
time.

Upon review, we find that even if S1 was mistaken about Complainant’s actions on the relevant
date, there is no evidence that the mistake was motivated by discrimination. After a review of
the record, we find that Complainant failed to show that the Agency’s articulated reasons were a
pretext for discrimination. Complainant has also not shown that similarly situated persons were
treated differently. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s action was motivated by discrimination as he 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.
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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.

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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

March 22, 2018
Date