Mathew R.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jul 26, 2018

0120181300 (E.E.O.C. Jul. 26, 2018)

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

Mathew R.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120181300

Hearing No. 570-2016-00545X

Agency No. DE-FY15-092

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated February 21, 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. 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 August 17, 2015, Complainant filed his complaint alleging that:

(1) On June 8, 2015, he was discriminated against based on race (African American) and sex
(male), when he was not selected for the Human Resources (HR) Development, GS-
0201-14 position, vacancy announcement number, DODEA-HQ-15-1339605-MP; and

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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(2) On July 15, 2015, he was discriminated against based on race (African American), sex
(male), and in reprisal for prior EEO activity when he was not selected for the
Supervisory Education (ED) Program Specialist, GS-1710-14 position, vacancy
announcement number, DODEA-HQ-15-1416564-DE.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On April 19, 2017, the Agency filed a Motion for
Summary Judgment and Complainant filed his opposition to the Agency’s Motion on April 20,
2017. On January 17, 2018, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision.

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 found that the Agency’s Motion for Summary Judgment accurately set
forth the undisputed material facts. Upon review, assuming arguendo that Complainant had
established a prima facie case of discrimination, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its nonselections. At the time of the alleged incidents,
Complainant was employed by another federal Agency, the Department of Health and Human
Services, Food and Drug Administration, as a Training Specialist, GS-13, in Silver Spring,
Maryland.

Regarding claim (1), Complainant claimed that he applied for the HR position at issue
electronically via USAJobs.gov. The Agency indicated that: Complainant was referred for an
interview along with two other candidates; the Selecting Officer (SO1) and the HR Deputy
Director interviewed him on May 26, 2015; he was considered as one of the top two candidates
for the position; and on June 15, 2015, he was notified to submit an OF-306 (Declaration of
Federal Employment) which he did via email; and after submitting the form, he received an
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email from SO1 that the position was cancelled due to the reorganization of the Agency’s HR
office as well as other divisions.

Specifically, SO1 indicated that at the relevant time, she accepted a position at the United States
Navy and discussed the situation with her supervisor, the Associate Director for Financial and
Business Operations, who decided that given the fact that she was leaving and also due to
impending reorganization, he would not yet fill the position and would instead permit her
replacement to recruit for the position at issue. SO1 indicated that she left the Agency on June
27, 2015, and was not aware if the position was reannounced later. The Associate Director for
Financial and Business Operations denied seeing Complainant’s OF-306 form or discussing it
with anyone at the relevant time. The Associate Director for Financial and Business Operations
indicated that the vacancy was not filled and was not subsequently reannounced due to a hiring
freeze imposed by Office of the Secretary of Defense.

Regarding claim (2), Complainant claimed that he applied for the Supervisory ED position at
issue electronically via USAJobs.gov but was not hired. The Agency indicated that the Selecting
Officer (SO2) reviewed the roster of qualified candidates, including Complainant, and selected
five candidates for interviews based on their relevant experience related to school administration
under the vacancy announcement. Complainant was not one of the five interviewed and thus
was not selected for the position at issue. In July 2015, SO2 selected a Selectee, an African
American male, for the position. SO2 indicated that she was not aware Complainant applied for
the HR position, described in claim (1), or his prior EEO activity at the relevant time.

The record indicates that the ED position duties involved, in part, providing guidance and
implementing policy concerning the Agency’s education programs from preschool through grade
12. The resume of the Selectee, a Director for Drop-out Prevention SDUSD (San Diego Unified
School District), reflects that he had previous experience as a high school principal and vice
principal, as well as a classroom teacher, since 2001. Complainant does not proffer any evidence
to show that his qualifications for the ED position were plainly superior to the Selectee’s
qualifications. See Complainant v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995). We note that Complainant does not provide any argument concerning his
nonselection for the ED position on appeal.

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 and that the AJ properly adopted the Agency’s statement of
undisputed facts. 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.
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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.
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“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

July 26, 2018
Date