0120141836
09-16-2016
Horace A.,1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horace A.,1
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor
(Occupational Safety & Health Administration),
Agency.
Appeal No. 0120141836
Agency No. CRC1304075
DECISION
Complainant filed an appeal from the Agency's March 12, 2014 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst at the Agency's Occupational Safety and Health Administration, Sam Nunn Atlanta Federal Center facility, in Atlanta, Georgia.
On April 29, 2013, Complainant filed an EEO complaint alleging that two of the Agency's offices (the Office of the Assistant Secretary for Administration and Management (OASAM) and the Occupational Safety and Health Administration (OSHA)) discriminated against him on the bases of race (African-American) and sex (male) when he learned, on November 9, 2012, that he had been "retroactively disqualified" from further consideration for a Supervisory Investigator position, after he was certified as eligible and interviewed for the position.
The pertinent record shows that Complainant applied for the Supervisory Investigator position advertised under Vacancy Announcement No. MS-12-ATL-OSHA-152. The announcement opened on September 6, 2012, and closed on September 18, 2012. While the vacancy was in OSHA, the applications were originally processed by OASAM. A Human Resource Specialist (White female) (RMO1) determined that Complainant was eligible. On September 26, 2012, RMO1 included Complainant's name on the Certificate of Eligible Candidates and referred the Certificate to the selecting officials. Complainant was interviewed for the position by regional officials from OSHA.
According to the testimony of the RMO1, after the certificate was issued, her supervisor (RMO2) brought to RMO1's attention that Complainant had been copied on the emails pertaining to the vacancy at issue. She indicated that RMO2 deemed Complainant ineligible for the position because Complainant had been involved in the initial consultation for the vacancy announcement and had been included on emails pertaining to the vacancy. RMO1 confirmed that Complainant had been privy to emails meant for the decision makers during the recruitment process. Report of Investigation (ROI), Tab B, page 3.
Complainant stated that after he learned he was disqualified, he consulted with RMO2 and she confirmed to him that she deemed him ineligible because of his receipt of a series of emails in August 2012 concerning the development of the vacancy announcement and selection process, and involving the servicing Human Resources Specialist. He said that she told him that she believed this had the potential to give him an unfair advantage in the selection process in violation of federal government merit system principles. Complainant does not deny that he was on the email stream, but disputes that he had any decision-making authority, and if he did, he asserts that it was wrongly conferred on him and never exercised by him.
The Agency selected a Caucasian female employee for the position. The candidate who was ultimately selected had not been on the original Certificate, because RMO1 initially determined her to be unqualified. RMO1 averred that RMO2 reversed RMO1's determination with regard to the eligibility of the Caucasian female candidate. RMO2 determined that the selectee had the requisite qualifications. RMO2 separated from the Department and the Agency was unable to procure her affidavit.
Complainant avers that, in this case, the Agency provided an advantage and preferential treatment to the Caucasian female, at the insistence of OSHA officials. The record does not contain any statements from the OSHA officials to refute Complainant's claims.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The Agency's decision concluded that Complainant "failed to provide sufficient evidence to suggest that it is more likely than not that [RMO2's] decision to disqualify him was unlawful discrimination rather than an understandable defense of the Merit System Principles." The Agency concluded that, "Complainant therefore cannot prevail in proving unlawful discrimination occurred" because "Complainant failed to meet his burden and cannot prove that management's explanations are false or unworthy of credence."
On appeal, Complainant asserts that the FAD "is legally infirm because the Agency abused its discretion and violated its statutory duty by failing to perform a thorough and fair investigation of [his] complaint when it repeatedly refused to seek testimony or collect evidence from senior OSHA officials accused of colluding to discriminate in favor of another candidate." Complainant averred that "there has been a conspicuous pattern of personnel decisions over the years with OSHA that suggests favoritism based on gender and race."
Complainant acknowledged, however, that he "is not challenging the substance of the Final Agency Decision per se." Instead, he contends that the Report of Investigation was "underdeveloped and insufficient to reach a credible finding for the Respondents." Complainant argues that the Agency did not collect testimony from key witnesses in OASAM and OSHA to address Complainant's claim that he was disadvantaged by "prohibited favoritism," because the Agency was hostile to 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").
Adequacy of Record
The Commission regulation at 29 C.F.R. � 1614.108(b) requires an agency to develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
In this case, the record excludes an affidavit from one decision maker (RMO2) because she had left the Agency by the time the investigation occurred, but testimony concerning her rationale for eliminating Complainant from further consideration is available through her subordinate (RMO1), who was in a position to know and to testify about the circumstances. In addition, the record contains an email to Complainant from RMO2, dated November 9, 2012, detailing her rationale for disqualifying him from further consideration. Complainant acknowledges his receipt of the email.
Complainant also claimed that the investigation was inadequate because no evidence was collected from the OSHA selecting officials, who he alleged pressured OASAM to eliminate him from consideration and favor the eventual selectee. In the report of investigation, the investigator noted that affidavits were not obtained from OSHA officials because the evidence established that Complainant was eliminated from consideration by OASAM human resources staff.
Complainant argues that he needed the testimony of OSHA officials to prove his unsupported claim that OSHA officials pressured OASAM staff to eliminate him for discriminatory reasons. However, Complainant, after receiving a copy of the ROI, failed to request a hearing to develop the record on this issue. Had a hearing been requested, Complainant could have engaged in discovery, and raised any concerns regarding the adequacy of the investigation at that point. Having failed to do this, we decline to take an adverse inference against the Agency.
Applicable Law - Section 717 of Title VII - Race and Sex
Section 717 of Title VII states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination based on race, color, religion, sex or national origin." 42 U.S.C. 2000e-16. In addition, the federal sector law, requires federal agencies to proactively ensure that the workplace is made free of all discrimination. To prevail in an individual disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
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 must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference 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). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that the Agency asserted a legitimate nondiscriminatory reason for its disqualification of Complainant. The servicing Human Resources officials perceived an apparent conflict with the requirements of the merit system principles mandating a "fair and open competition," because it was determined that Complainant had been involved in the initial consultation for the vacancy announcement and copied on subsequent emails pertaining to the vacancy. To prevail, Complainant would have to prove that the stated reason was a pretext for unlawful animus.
In this case, Complainant offered no evidence to show that the Agency's stated reason was not its true reason. While Complainant baldly asserts that the Human Resources staff was pressured by OSHA officials to disfavor him in the selection process, there is absolutely no evidence to support this assertion. Even if RMO2 incorrectly interpreted the mandates of the merit system principles, as argued by Complainant, this still provides no proof that she did so for discriminatory reasons.
Therefore, based on our review of this record and for the reasons set forth herein, we find that the record supports that Agency's final decision, finding that Complainant did not meet his burden of proving, by a preponderance of the evidence, that the Agency's stated reason was a pretext for unlawful discrimination.
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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 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
September 16, 2016
__________________
Date
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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