Luigi B.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

May 23, 2018

0120181269 (E.E.O.C. May. 23, 2018)

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

Luigi B.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120181269

Hearing No. 570-2016-01099X

Agency No. OS-15-0963

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated January 24, 2018, finding no discrimination
regarding 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency. On November 6, 2015, Complainant filed his complaint alleging
discrimination based on race (Black) and disability (PTSD - posttraumatic stress disorder) when
on August 12, 2015, he became aware that he was not selected and the selectee was preselected
for the position of GS-2210-15, Supervisory IT (Information Technology) Specialist under
vacancy announcement number SW-15-PQ1408644 (MP).

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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Upon completion of the investigation of the complaint, Complainant requested an EEOC
Administrative Judge (AJ) hearing. On November 7, 2017, the Agency filed a Motion for
Summary Judgment and on November 18, 2017, Complainant filed an Opposition to the
Agency’s motion. On January 6, 2018, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appeals the Agency’s final order.

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, the AJ incorporated the Agency’s Motion for Summary Judgment in her
decision. The AJ, assuming arguendo that Complainant had established a prima facie case of
discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for
its action. The record indicates that in May 2015, Complainant applied for the Supervisory IT
Specialist, GS-15 position, Assistant Secretary Indian Affairs, at the Agency. At that time,
Complainant was an Information Systems Security Manager, GS-14, at the Department of Navy.

The record indicates that the Senior Advisor for Information Resources was a Selecting Official
(SO) and he was the head for the Office of Information Management Technology which
controlled IT for Indian Affairs. The SO indicated that he approved the vacancy announcement
at issue; he received the certificate of eligible from Human Resources; he assigned his deputy
(D1) to convene a panel to review resumes from the certificates; three panelists reviewed the
resumes of 36 applicants on the certificate of eligibles and decided to interview five candidates,
including Complainant; the panelists, including D1, used a standard list of questions for each
interviewee; and each panelist individually evaluated and ranked the interviewees with a
numerical ranking of 1 – 5 (highest to lowest), or ranked a candidate “N” for “not
select/qualified” if the panelists would not refer the candidate to the SO.

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The panelists indicated that they referred an identified candidate (C1), White, disability
unknown, as their first choice to the SO because C1 received the highest ranking “1” from all
panelists; one panelist worked with C1 on a project and was familiar with C1’s policy
experience; C1 possessed accreditation of complex system; and C1 had an impressive interview
performance. C1 however withdrew his candidacy prior to his second interview with the SO. At
the relevant time, C1 worked as an Acting, Chief Information Security Officer at Department of
Energy, and had a Master of Science degree in Systems Engineering and Bachelor of Science
degree in Mechanical Engineering.

The panelists further indicated that they also referred another identified candidate (C2), Asian,
disability unknown, as their second choice to the SO. C2 received ranking “2” from three
panelists and “N” from one and, according to the SO, C2 possessed outstanding leadership and
technical abilities. The SO interviewed C2 and selected C2 on June 22, 2015; but C2 declined
the offer on July 13, 2015. At the relevant time, C2 worked as an Identity Technology Security
Section Chief, Information System Security Manager, GS-14 at Department of Homeland
Security, and had a Bachelor’s degree in Information system.

Complainant and C4 were ranked “N” from all panelists and C3 received ranking “3” from three
panelists and ranking “1” from one. Complainant, C4, and C3 were not referred to the SO.
Specifically, the panelists indicated that Complainant did not present himself well during the
interview; they did not think he was suitable for the position; his answers to questions in the area
of IT Security were not answered as well as they had hoped; he lacked oral speaking skills; and
he did not have the civilian government experience (he had civilian military experience),
technical skill set, and managerial skill set they were looking for.

The SO stated that at the relevant time, he did not know Complainant and was not aware of his
disability or his race. The panelists too indicated that they were not aware of Complainant’s
disability at the relevant time.

After both C1 and C2 declined the job offer, the SO requested to see the original certificate again
since the panelists had doubts about C3’s leadership and because C4 and Complainant had both
been ranked “N.” Pursuant to the SO’s instruction, D1 tasked an identified manager, who
possessed subject matter expertise, to review the resumes of candidates, except C1 – C4 and
Complainant, and rank candidates to the matrix. Based on the ranking, D1 referred five
candidates for interview; four panelists (two panelists replaced prior two panelists) interviewed
the candidates; the top two candidates were referred to the SO; on July 31, 2015, the SO
interviewed both and selected the first choice of the panel, Selectee (SE) (White, no disability).
The SO indicated that he did not know the SE before interviewing and selecting the SE. At the
relevant time, the SE worked at the Agency as a Bureau Chief Information Security
Officer/Section Chief, GS-14 of Safety and Environment Enforcement, and an Assistant
Secretary – Indian Affairs. The SO stated that the SE had experience with the Agency and
Bureau of Indian Affairs, management experience, Federal Information Security Management
Act experience, and security monitoring experience.

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Complainant argued that he should have been selected for the position at issue because he had
more educational background, i.e., Master of Science in Network Security and Bachelor’s
Degree in Business Administration with Management Information System. We note that the
position at issue did not require a Master degree. The record indicates that C1 too had a Master
of Science degree in Systems Engineering and Bachelor of Science degree in Mechanical
Engineering. Despite Complainant’s contentions, we find that there is no evidence that the SE
was preselected or Complainant’s qualifications for the position were plainly superior to the
ultimate SE’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). In this case, we do not address whether Complainant is a qualified
individual with a disability. Furthermore, we note that Complainant has not claimed that he was
denied a reasonable accommodation.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing. Upon review, the AJ found and we agree that there is no
evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext.
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 (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).
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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

May 23, 2018
Date