0120160772
01-31-2018
Monroe M,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Monroe M,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120160772
Agency No. ARSMDC12DEC05154
DECISION
On December 2, 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 October 30, 2015, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Attorney Advisor, GS-0905-13 at the Agency's U.S. Army Space and Missile Defense Command, Office of the Staff Judge Advocate, located in Kwajalein Atoll on the Marshall Islands.
On April 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (20% service connected disability for asthma) and age (62) when, on December 12, 2012, he was not selected for the Attorney Advisor position posted under Vacancy Number SCBK1268004.
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). In accordance with Complainant's request, 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. Specifically, the Agency noted that the Review Panelists (Panelist 1, Panelist 2, and Panelist 3) were provided copies of the applications of those found to be best qualified. The Agency indicated that the applications were assigned numbers and identifying information was redacted. The Panelists reviewed the resumes and provided Human Resources with their reviewed scores. The scores were placed in a matrix. From the tallied scores, the Panelists interviewed the five candidates with the top scores. Complainant was not one of the top five, he was ranked 10th based on the Panelists scores. The Panelists provided scores for the five interviewed candidates to the Selecting Official. The Selecting Official chose the top scoring candidate who rejected the position. The position was then offered to the second candidate who also rejected the position. The position was offered to the third candidate who accepted the position. Complainant was then notified that he was not selected for the position in question.
Based on these facts, the Agency found that Complainant failed to show that Panelists were aware of his age and/or disability at the time they reviewed his application. Assuming that Complainant established a prima facie case, the Agency held that it provided legitimate, nondiscriminatory reasons for its decision. Finally, the Agency concluded that Complainant failed to show that the Agency's reasons were pretext for discrimination.
Complainant appealed asserting that he was subjected to discrimination based on age and disability. He indicated that the Panelists could easily find that he was well over the age of 40 based on his years of experience. He also asserted that he is covered under the Rehabilitation Act based on his medical condition. As such, he found that the Panelists were disingenuous. He questioned why these Panelists were chosen to participate in the selection process. He believed that he was qualified for the position in question and should have been selected. Therefore, Complainant argued that he provided sufficient evidence to establish pretext. Accordingly, Complainant asked that the Commission find that he was subjected to discrimination when he was not selected for the position in question. The Agency responded to Complainant's appeal asking that the Commission affirm its final decision.
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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. The record indicated that 31 applicants were listed on the best qualified list. The applications of the candidates were redacted and provided to Panelists 1, 2, and 3 for review. The Panelists scored each candidate and provided the scores to Human Resources to place in a matrix. Based on the total scores, the top five candidates were interviewed by the Panelists. Complainant was not one of the top five candidates but was ranked 10th of the 31 applicants. The Panelists provided scores for the interviews. The total scores were given to the Selecting Official who stated he chose the highest ranked applicant for the position. He rejected the position. The second candidate was chosen for the position. However, he too rejected the position. Finally, the position was offered to the third candidate. She accepted the position. Based on our review of the record, we find that the Agency has met its burden.
We now turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant argued that the Panelists were disingenuous in their responses to the Agency's investigation. Complainant argued that the Selectee was to receive the position and that the others who rejected the position were "staging horses," individual who were expected to decline the position so that the Selectee would be the chosen candidate for the position in question. Many of Complainant's arguments were just that, arguments without evidence to substantiate his assertions. Further, Complainant claimed that he should have been selected for the position based on his experience. In a non-selection case, pretext may be demonstrated in a number of ways, including a showing that the complainant's qualifications are "observably superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We will only substitute our judgment for that of the selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, if other facts suggest that proscribed considerations entered into the decision-making process. See Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998) citing Bauer. Although Complainant provided statements from individuals who felt that Complainant would have performed the position in question, he did not establish that he was "observably superior" to the Selectee. Therefore, upon review, we find that Complainant has not provided any evidence to show that the Agency's reasons constituted pretext for discrimination based on disability and/or age.
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.
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 31, 2018
__________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160772
2
0120160772