Marvin D.,1 Complainant,v.Scott Pruitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Apr 18, 2018

0120160858 (E.E.O.C. Apr. 18, 2018)

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

Marvin D.,1
Complainant,

v.

Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120160858

Hearing No. 520-2012-00301X

Agency No. 2011-0032-R02

DECISION

On December 11, 2015, 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
November 9, 2015, final order 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial Policy
Specialist, GS-501-13, in the Agency’s Financial Management Branch, Office of Policy &
Management in New York, New York.

On April 1, 2011, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (Caucasian), national origin (American of
German descent), sex (male), color (white) and age (58) when:

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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1. On February 23, 2011, Complainant was not selected for the position of Supervisory
Accountant; and

2. During the period of February 1, 2009 through October 10, 2010, Complainant was
not selected for a series of 120-day temporary promotions to the position of Acting
Supervisory Accountant.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment and
issued a decision without a hearing on October 5, 2015.

The AJ found with regard to claim (1) that no discrimination occurred. The AJ dismissed claim
(2) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate
contact with an EEO Counselor in a timely manner. The record reveals as to claim (1) that
Complainant applied for the position of Supervisory Accountant and was among three applicants
initially interviewed for the position by the selecting official. Two of the applicants were chosen
for a second round of interviews, but not Complainant. The selectee was a Hispanic female
under the age of 40.

While Complainant claimed that his nonselection in 2011 was based on his prior complaint in
2007, the AJ noted that reprisal was not an accepted basis for investigation. In any case, the AJ
found that no prima facie case of reprisal exists in light of there being no temporal proximity
between the 2007 EEO complaint and the 2011 nonselection. The AJ found that Complainant set
forth a prima facie case of discrimination under the other alleged bases. The AJ further found
that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s
nonselection. The selecting official explained that he considered factors such as educational
achievements, performance ratings, and demonstrated professionalism. According to the
selecting official, Complainant exhibited a lack of professionalism and an inability to properly
interact with management employees. The AJ stated that Complainant exhibited unprofessional
behavior when he made flippant responses in work emails. The AJ noted that the selection
official described unprofessional remarks made by Complainant during a previous job interview.
According to the selecting official, Complainant indicated that he had no tolerance for the
“stupidity” of supervisory personnel. The AJ stated that Complainant’s negative attitude toward
management was a major concern for the selecting official, especially since the position at issue
was a supervisory position. Further, the AJ observed that in contrast to the selectee’s
“Outstanding” performance rating, Complainant had a “Fully Successful” performance rating.

The AJ found that Complainant failed to establish that the Agency’s explanation for his
nonselection was pretext. The AJ noted that Complainant challenged the selecting official’s
credibility in large part because the selecting official required refreshment of his memory in a
prior EEO complaint when providing examples of Complainant’s poor attitude toward
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management. The AJ noted that it is not uncommon for a witness to have difficulty recalling a
conversation that occurred four years earlier. The AJ stated that of greater importance was that
Complainant did not deny uttering remarks to the selecting official at a prior job interview that
left the selecting official with a negative impression concerning Complainant’s ability to
properly interact with management personnel.

With respect to claim (2), the AJ observed that the most recent temporary position assignment
identified by Complainant was made on October 10, 2010. The AJ stated that Complainant did
not initiate contact with an EEO Counselor until approximately five months later on March 23,
2011. The AJ noted that Complainant argued that he lacked a reasonable suspicion of
discrimination until the permanent selection was made in February 2011. The AJ rejected this
contention and stated that Complainant should have had a reasonable suspicion of discrimination
given that every person selected to the temporary positions was Hispanic and under 40 years of
age. The AJ dismissed claim (2) based on Complainant’s untimely EEO Counselor contact.

The Agency subsequently concurred with the AJ’s decision and adopted it as its final order.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ improperly granted the Agency’s Motion for
Summary Judgment given that the AJ had not ruled on his Motion to Compel and his Amended
Motion to Compel. Complainant argues that had he gained access to the discovery he sought in
these Motions, he would have been able to refute the Agency’s reasons for his nonselection.
Complainant maintains that the AJ improperly denied his attempt to amend his complaint to
include the basis of reprisal. Complainant states that he first raised a claim of reprisal in his
rebuttal affidavit to the selecting official’s affidavit. Complainant argues that the AJ never
informed him that a motion was necessary to add a claim of reprisal. According to Complainant,
the AJ erred in finding that his reprisal claim lacked temporal proximity. Complainant contends
that the AJ should not have focused solely on when he filed his prior complaint in 2007.
Complainant maintains that he was engaging in protected activity during the entire November
28, 2007 to March 2, 2011 time period that the selection decisions were being made as evidenced
by the various events during the investigation and discovery stages of his prior complaint.

With regard to claim (2), Complainant argues that the AJ changed the dates of his claim in order
to dismiss the claim on the grounds of untimely EEO Counselor contact. Complainant states that
both he and the Agency agreed that the period encompassed by this claim is February 1, 2009 –
February 26, 2011. Complainant points out that the AJ changed the relevant period to February
1, 2009 – October 10, 2010. Complainant states that this change resulted in his March 23, 2011
EEO Counselor contact being deemed untimely. Complainant criticizes the AJ’s finding that he
should have had a reasonable suspicion of discrimination prior to the time of the selection for the
permanent position. Complainant states that he would not have known that every person
selected for the temporary positions was Hispanic and under the age of 40 until all the selections
had been made and it was clear no further temporary selections would be made. Complainant
argues that this did not occur until the permanent selection was made on March 2, 2011.
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Complainant maintains that many of the temporary selections did not suggest discrimination at
the time because the selectees were qualified based on their credentials. Complainant states that
after the permanent selection was announced, he realized there was a pattern to the assignments.
According to Complainant, other than when the selecting official designated himself as Action
Section Chief, only Hispanics were reassigned to the position of Acting Section Chief of the
Budget and Accountability Section. Complainant states that he also did not develop a suspicion
of discrimination because the PSS promotions were all made to individuals over the age of 40
and went to a variety of individuals, one Hispanic, two African-Americans and one Caucasian.

Complainant states that the selectee was preselected for the permanent position as she was the
only accountant to receive a temporary promotion to the supervisory accountant position.
Complainant points out that the only Caucasian male over forty who was selected for a
temporary position was promoted to a position that would not give him a competitive advantage
over the eventual selectee for the permanent position because he was promoted to a non-
accounting position. Complainant further claims that the eventual selectee gained additional
competitive advantage as she was the only individual laterally reassigned to be the Budget Team
Leader in the Budget and Accountability Section during the relevant two year time frame.
Complainant also contends that even if his claim concerning the temporary promotions is
untimely, they should be considered as background evidence for analysis of the permanent
selection.

Complainant contends that the selecting official had no first-hand knowledge of his lack of
professionalism, and obtained his perceptions from his supervisor and Complainant’s supervisor.
According to Complainant, the selecting official’s supervisor was the subject of two of his prior
complaints, both involving the selection of Complainant’s supervisor. Complainant challenges
the permanent selectee’s “Outstanding” performance rating. Complainant points out an instance
where the selectee failed in her oversight of the Travel Card Program. Complainant argues that
he was more qualified than the selectee for the permanent position. Complainant notes his 22-
year tenure with the Agency, nearly all of which was in the Financial Management Branch.
Complainant states that he has eight years of experience conducting financial management
reviews, which represents a significant portion of the work performed by the Budget and
Accountability Section. With regard to performance ratings, Complainant points out that his
evaluations after he filed an EEO complaint in 2005 were “Fully Successful” in contrast to
“Outstanding” ratings or “Pass” in a pass/fail system prior to the filing of his 2005 complaint.

Complainant challenges the consistency of the selecting official’s rationale for his nonselection.
Complainant states that in his deposition, the selecting official stated that he had no first-hand
knowledge of Complainant’s temperament issues. According to Complainant, there was no
mention by the selecting official of his comment during a job interview in 2007 to either an EEO
Counselor in the instant matter or during a deposition on his prior complaint. Complainant states
that both events occurred within two months of the permanent selection. Complainant points out
that on his performance evaluation he received an “Exceeds Expectations” rating in a category
that encompassed professionalism. Complainant claims the AJ weighed evidence and credibility
at the summary judgment stage.
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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). 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 the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC
Appeal No. 01A24206 (July 11, 2003).

Complainant argues on appeal that the AJ erred in granting the Agency’s Motion for Summary
Judgment given that the AJ had not issued a ruling on his Motion to Compel and Amended
Motion to Compel. Complainant maintains that his ability to establish that discrimination
occurred has been impeded by the AJ’s failure to grant his motions as he has been unable to
obtain necessary evidence. Upon review of the record, we discern that the Agency has provided
much of the information that Complainant sought in his interrogatories and request for
documents. Much of the information that Complainant has persisted in seeking is overly broad,
vague, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.
In consideration of each item of evidence requested by Complainant, we find that no information
sought by Complainant is likely to change the outcome of this complaint. We therefore find that
the AJ’s failure to issue a ruling on either Complainant’s Motion to Compel or Amended Motion
to Compel was harmless error.

To prevail in a disparate treatment claim such as this, 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). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists
between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency 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).
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With regard to claim (1), we shall assume arguendo that Complainant has set forth a prima facie
case of discrimination under each of the alleged bases. Complainant argues that the basis of
reprisal should also be considered. We note that Complainant did raise reprisal during the
investigation and he argued to the AJ that his nonselection was in reprisal for his EEO complaint
in 2007. We will consider the reprisal basis and we disagree with the AJ’s finding that there was
no temporal proximity between the 2007 complaint and the 2011 nonselection, given that
discovery was ongoing in the prior complaint during the time of the instant nonselection. We
find that Complainant set forth a prima facie case of reprisal.

The selecting official explained that among the factors he weighed in his selection for the
position of Supervisory Accountant were educational achievements, performance ratings, and
demonstrated professionalism. The selecting official stated that he chose the selectee based on
her “Outstanding” performance ratings for the last several years, her ten years of experience in
Financial Management in the Budget and Accountability Section, that she is an accountant and
has a MBA, that she had some experience in serving in an acting capacity in the Supervisory
Accountant position, and has demonstrated a professional demeanor in all of her work contacts.
With regard to Complainant, the selecting official stated that he exhibited a lack of
professionalism and an inability to properly interact with management employees. The selection
official described unprofessional remarks made by Complainant during a previous job interview
and flippant responses in work emails. According to the selecting official, Complainant
indicated that he had no tolerance for the “stupidity” of supervisory personnel. The selecting
official asserted that he concluded that given Complainant’s apparent unprofessionalism,
Complainant lacked the skills, demeanor or professionalism to be a strong supervisor. We find
that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant’s
nonselection.

Complainant attempts to establish pretext by emphasizing his qualifications and by claiming that
the temporary assignments given to the selectee prior to her selection for the Supervisory
Accountant position constituted preselection. In a nonselection case, pretext may be shown by a
showing that Complainant’s qualifications are observably superior to those of the selectee.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We recognize that Complainant had 22
years of experience with the Agency, including eight years of experience conducting financial
management reviews. However, the selectee’s credentials were also impressive. We find that
Complainant’s qualifications were not so observably superior to those of the selectee as to
warrant a finding of pretext. This is particularly the case in light of management’s concerns
about Complainant’s professionalism and ability to interact with management. As for
Complainant’s argument that preselection occurred, we observe that while evidence of
preselection may act to discredit the Agency’s explanation for its selection, preselection does not
violate Title VII when it is based on the qualifications of the selectee and not some basis
prohibited by Title VII. Goostree v. State of Tennessee, 796 F.2d 856, 861 (6th Cir. 1986). We
discern insufficient evidence to support Complainant’s claim that his nonselection was
attributable to discriminatory motivation.

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Complainant challenges the selecting official’s reasoning for his nonselection. Complainant
argues that he received an “Exceeds Expectations” rating in the category of his performance
evaluation that encompasses professionalism. Complainant maintains that the selecting official’s
reliance on unprofessionalism lacks credibility given that he required refreshment of his memory
in a prior EEO complaint when providing examples of Complainant’s poor attitude toward
management. However, we are not persuaded that this lapse in memory indicates the selecting
official did not in fact consider Complainant’s lack of professionalism in making his selection.
As the AJ noted, of greater importance was that Complainant did not deny making comments to
the selecting official at a prior job interview that left the selecting official with a negative
impression concerning Complainant’s ability to properly interact with management personnel.
We find that Complainant has failed to establish that the Agency’s explanation for his
nonselection was pretext designed to hide discriminatory intent.

As for claim (2), the record reveals that the nonselections for the temporary assignments at issue
occurred during the period of February 1, 2009 – October 10, 2010. Complainant argues on
appeal that the end date that had been accepted was February 26, 2011, and that the AJ
improperly changed the end date to October 10, 2010, so as to find this claim untimely.
However, our review of the record reveals that the end date cited by Complainant refers to when
the selection was made for the permanent Supervisory Accountant position at issue in claim (1).
In terms of the temporary positions at issue in claim (2), the last selection occurred on October
10, 2010. Complainant did not initiate contact with an EEO Counselor until March 23, 2011,
after the expiration of the 45-day limitation period. Complainant contends that he lacked a
reasonable suspicion of discrimination until after the permanent selection occurred. However,
we observe that the Hispanic selectee for the permanent position had received temporary
assignments prior to the permanent selection. We find that the temporary assignments were
discrete acts and that Complainant has not offered sufficient argument to demonstrate that he
should not have had a reasonable suspicion of discrimination until after a permanent selection
occurred. Thus, Complainant’s EEO Counselor contact on March 23, 2011, was untimely with
respect to claim (2).

CONCLUSION

The Agency’s implementation of the AJ’s determination that no discrimination occurred as to
claim (1) is AFFIRMED. The Agency’s implementation of the AJ’s dismissal of claim (2) on
the grounds of untimely EEO Counselor contact is AFFIRMED.
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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.
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.
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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

April 18, 2018
Date