Joshua F.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Aug 19, 2016

0120140773 (E.E.O.C. Aug. 19, 2016)

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

Joshua F.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120140773

Hearing No. 570-2011-00943X

Agency No. FBI-2011-00006

DECISION

Complainant filed an appeal from the Agency’s final order dated November 21, 2013, finding
no discrimination with regard to 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 order finding no
discrimination.

BACKGROUND

In his complaint filed on November 30, 2010, Complainant alleged discrimination based on
race (African American), age (over 40), and in reprisal for prior EEO activity when on
October 26, 2010, his supervisor failed and/or refused to submit his promotional package to
the Quality Review Board (QRB). Upon completion of the investigation of the complaint,
Complainant requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). On September 25, 2013, the AJ issued a decision without holding
a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. The record indicates that in early 2010, Complainant, an
Information Technology Specialist (ITS), GS-13, transferred from the Information Operations
Division (ITOD) to the Information Technology Engineering Division (ITED), Washington,
D.C. The record also indicates that prior to his transfer, Complainant, in accordance with the
Agency’s policy, filed an application with his former supervisor in January, 2010, to be
promoted to a GS-14 level ITS. Complainant’s former supervisor forwarded the application to
the QRB. In March, 2010, the QRB was convened to review Complainant’s application.
Based on his work accomplishments in his Knowledge, Skills, and Abilities (KSAs) required
for the GS-14 level position, the QRB gave Complainant an overall score of 25 out of a
possible 40 points, i.e., 3 points short of the minimum number of 28 required for promotion.
The non-promotion is not at issue in the instant complaint.

In this complaint, Complainant claimed that in early October, 2010, he resubmitted his new
application for promotion, including his revised KSAs, to his new supervisor/Unit Chief (UC)
but UC refused to submit his application to the QRB. UC indicated that after reviewing
Complainant’s promotion package, he found it to be insufficient for promotion. UC stated that
he then contacted Human Resources (HR) who informed him that he was not required to
submit the package if Complainant was not performing work at the GS-14 level. UC stated he
did not submit Complainant’s promotion package to the QRB due to Complainant’s lack of GS-
14 level duties. UC noted that at the same time he also refused to submit Complainant’s
coworker’s promotion package to the GS-14 level. UC noted that during the relevant time
period, he assigned Complainant a project that was at a higher level than he had been doing in
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his position, but Complainant took far longer than expected to complete the project and his
finished project had major flaws although he stated in his KSAs that he already had expertise in
that type of project.

Complainant noted that he then contacted and appealed the subject matter to his Deputy
Assistant Director who submitted his application to the QRB. The record indicates that on
February 7, 2011, the QRB, consisting of four members, was convened and ultimately rated
Complainant’s KSAs with 22 points, i.e., 6 points short of the minimum number of 28
required for promotion. On appeal, Complainant does not dispute the QRB’s evaluation of his
KSAs. We note that Complainant subsequently retired on February 28, 2011.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for not submitting his promotional package to the QRB initially on
October 26, 2010. The AJ found and we agree that there was no genuine issue of fact that
Complainant was ultimately considered for promotion despite UC’s action as alleged. After a
review of the record, we find that Complainant failed to show that there were any similarly
situated employees not in his protected groups who were treated differently under similar
circumstances. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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 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 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
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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

August 19, 2016
Date