Jarrod W.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

Appeal No. 0120182445 (E.E.O.C. Jan. 7, 2020)

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

Jarrod W.,1
Complainant,

v.

Thomas B. Modly,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182445

Agency No. DON-17-40085-02443

DECISION

On July 10, 2018, 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
June 22, 2018, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-1101-09
Performance Assessment Representative (PAR) in the Facilities Service Contracts
Management/Facilities Support Branch, Facilities Engineering and Acquisitions Division, Public
Works Department at the Agency’s Norfolk Naval Shipyard facility in Portsmouth, Virginia.
Complainant’s first-line supervisor was the Facilities Service Contracts Manager (S1), his
second-line supervisor was the Facilities Engineering and Acquisitions Department (S2), and his
third-line supervisor was the Deputy Public Works Officer (S3). According to S3, Complainant
is assigned to Facility Support Contracts within his Branch, and his work is related to contract
assessment. Complainant is African-American and black, and he stated that he had previously
filed several EEO complaints naming S1, S2, and S3 as responsible management officials.

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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Complainant averred that he timely applied for a GS-0802-11 Engineering Technician vacancy
in his Branch advertised under announcement number SE70802-11-1830527LG529171. S3
stated that the Portsmouth Public Works Department was authorized to create three new GS-
0802-10/11 Engineering Technician positions to work on construction contracts. According to
S3, he and S2 decided to fill two GS-11 positions first to find experienced and knowledgeable
candidates. S3 averred that the plan was to fill the GS-10 position at a later date after the “bugs”
were worked out, but he stated that the third billet was moved to a different Public Works
Department near Hampton Roads, Virginia.

S2 was the selecting official for the GS-11 positions. According to S2, Complainant’s name was
not on the certificate of eligibles for the GS-11 vacancies. The vacancy announcement stated that
candidates needed at least one year of specialized experience at or equivalent to the GS-10 grade.
S2 selected two individuals who were white and Caucasian for the GS-11 positions (C1 and C2),
and he stated that he made the selections based on their experience. According to the record, C1
had worked since September 2011 as a GS-0802-11 Engineering Technician in two different
states. According to the record, at the time of his application, C2 was a GS-09 Facilities
Operations Specialist, but he had previously worked as a WG-10 Maintenance Electrician from
December 2010 through May 2015.

Complainant averred that, in 2015, a white, Caucasian coworker (C3) was temporarily promoted
from a GS-09 Planner/Estimator position to a GS-11 Engineering Technician position.
Complainant stated that C3 did not have any contracting experience at the time of his temporary
placement, but C3 was later promoted because he gained the needed knowledge and experience
on the job. According to Complainant, he should have been given the same opportunity as C3 to
be temporarily promoted to one of the GS-11 positions. Complainant alleged that, in announcing
the positions at the GS-11 grade, S3 “moved the goal posts” to exclude Complainant from
opportunities for advancement.

Complainant submitted a written request to attend a Contracting Re-Boot Camp training that
would be held in Norfolk from June 5-8, 2017. On April 19, 2017, S2 denied the request,
emailing Complainant that this course was intended for Acquisition and Procurement personnel
and that the subject matter did not align with Complainant’s PAR position. S2 recommended that
Complainant take other courses related to Facility Supports Contracts, communication of
computer skills, or employment benefits. According to Complainant, he re-registered for the Re-
Boot training on June 1, 2017. Later that day, S1 denied his request because the course was
intended as a refresher for Acquisitions and Procurement staff and suggested that Complainant
take other courses targeted towards Facility Supports Contracts personnel. According to the
record, none of S1’s subordinates attended the Contracting Re-Boot Camp session.

Complainant also requested to attend a Vertical Transportation Equipment (VTE) Inspector
Training course that was scheduled to take place from September 11-22, 2017, in Orlando,
Florida. On June 23, 2017, S1 approved Complainant’s request. On July 12, 2017, S1 emailed
Complainant, stating that she needed to cancel the VTE Inspector training.
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S1 averred that she mistakenly thought that Complainant had asked to attend a three-day course,
rather than the two-week training. Complainant requested higher-level of review of S1’s
decision, and on July 12, 2017, S3 stated in an email to S1 that he was inclined to allow
Complainant to attend if the course was appropriate for PARs. On July 13, 2017, S1 told S3 that
she had contacted the VTE Training Coordinator (VTC). According to S1, the VTC stated that,
although Engineering personnel were the target audience, PARs who had taken the three-day
basic course were eligible for the VTE Inspector training. On July 13, 2017, S1 informed
Complainant that he could not attend the requested training. S1 stated that she would arrange to
have the three-day basic course offered in Norfolk so Complainant could attend. Complainant
alleged that attending the three-day course is not an actual prerequisite for the two-week training.
According to S1, she also denied requests for the same training submitted by a white, Caucasian
PAR (C4) and another black, African-American PAR (C5).

On September 11, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (black), and reprisal for
prior protected EEO activity when:

1. On May 4 and June 12, 2017, he became aware that two Caucasian and White
individuals were selected for GS-0802-11 Engineering Technician positions; and

2. On June 1 and July 12, 2017, he was not given permission to participate in
training.

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). 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 decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

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”).

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Complainant alleged that he was subjected to discrimination when he was not selected for a GS-
11 position and when he was denied training. To prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however,
since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for one of the
GS-11 Engineering Technician positions was that he did not have at least one year of specialized
experience at the GS-10 level or equivalent. The Agency’s legitimate, nondiscriminatory reason
for posting the vacancies at the GS-11 level instead of the GS-10 level was to have more
experienced employees in place at the beginning of the contract. Although Complainant contends
that he should have been temporarily promoted to gain experience like C3, who is white and
Caucasian, was temporarily promoted in 2015, this does not establish that that the Agency’s
legitimate, nondiscriminatory explanation for not selecting Complainant is pretextual, and the
preponderance of the evidence in the record does not otherwise establish pretext for
discrimination based on race, color, and/or reprisal.

The Agency’s legitimate, nondiscriminatory reason for denying Complainant’s request to attend
the Contracting Re-Boot Camp training was that it was targeted for Acquisition and Procurement
personnel and would not have content aligned with Complainant’s PAR duties. Complainant
disputes the assertion that he was not part of the target audience for the training, noting that he is
involved in aspects of contracting as a PAR in Facilities Service Contracts
Management/Facilities Support Branch. However, while Complainant’s work may have involved
contracts, a preponderance of the evidence in the record establishes that the course was intended
for employees involved in the acquisition and procurement side of contracting work.
Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for not
approving his requests to attend this course was pretextual.

The Agency’s legitimate, nondiscriminatory reason for cancelling Complainant’s request to
attend the VTE Inspector Training was that PARs were not the target audience and should take
the three-day basic course as well. Although Complainant notes that the course description does
not state that PARs must take the three-day basic course as a prerequisite, other PARs were also
not permitted to take this course without taking the basic course first, including C4, a white,
Caucasian PAR.
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We find that Complainant has not established by the preponderance of the evidence in the record
that the Agency’s proffered legitimate, nondiscriminatory reason was a pretext designed to mask
discriminatory or retaliatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no
discrimination.

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.
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.
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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

January 7, 2020
Date