Otto D.,1 Complainant,v.Eric Fanning, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionFeb 1, 20160120142875 (E.E.O.C. Feb. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otto D.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120142875 Hearing No. 420-2014-00083X Agency No. ARSMDC12NOV05152 DECISION Complainant filed an appeal from the Agency’s July 28, 2014 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. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as an Attorney for the United States Postal Service. He applied to the Agency for an Attorney-Advisor position, which was located at the Space and Missile Defense Command facility in Kwajalein, Marshall Islands, but was not hired. On March 28, 2013, he filed an EEO complaint in which he alleged that those involved in the selection process discriminated against him on the bases of race (Caucasian), sex (male), and age (47) by not selecting him. Following the ensuing investigation, Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On June 30, 3014, in response to the Agency’s motion for summary judgment, the AJ issued a decision 1This 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. 0120142875 2 without holding a hearing, in which he found that the Agency had not discriminated against Complainant as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The officials involved in the selection process included: the Deputy Staff Judge Advocate, who served as the selecting official (SO); the Technical Center Director, the approving official (AO); and a Supervisory Attorney and two Attorney-Advisors, who served as selection panelists (P1, P2, P3). The three panelists reviewed the candidates’ written application packets independently and ranked them against the scoring criteria devised for the position. Once the candidates with the top five scores were identified, they were interviewed by the panelists together. At the conclusion of the interviews, the panel scored the five finalists again, adding their interview scores to their application packet scores. Both the top-ranked and the second- ranked candidate declined the offer. The selectee was the third-ranked applicant. When asked why Complainant was not selected, SO, AO, P1, P2, and P3 all averred that Complainant’s application packet score was not high enough to merit inclusion in the top five. Investigative Report (IR) 59, 60, 65, 69. 71, 76-78, 83, 131, 141-42, 148-53, 337. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel selections unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether SO, AO, P1, P2, or P3 were motivated by unlawful considerations of his age, race, or gender when they decided not to hire him as an Attorney-Advisor. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). When a case for discrimination is circumstantial, as this one is, Complainant can raise a genuine issue of material fact by submitting sworn statements or documents tending to show that the articulated reasons for not selecting him are pretextual. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. In nonselection cases, evidence of pretext can take the form of a showing that Complainant’s qualifications for the position were plainly superior to those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3, 2015). Complainant can also present evidence of discriminatory statements or past personal treatment attributable to SO, AO, P1, P2, or P3, comparative or statistical data revealing differences in treatment across racial, gender, or age-related lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). 0120142875 3 When asked by the investigator why he believed that is race, gender, and age were motivating factors in his nonselection, Complainant insisted that he had more experience than the selectee in several of the selection criteria. The selectee was a younger female whose race was not identified. IR 53-55. His contention appears to rest on the notion that the nonselection itself was sufficient to establish the motive. This is simply not true. An employer has discretion to choose among equally qualified candidates as long as the selection is not based on unlawful criteria, in this case Complainant’s race, sex, and age. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). And on this crucial issue, Complainant did not provide evidence of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents which contradict the explanations provided by any of the officials involved in the selection, call into question the veracity of those officials, or otherwise raise questions as to whether his qualifications were plainly superior to those of the selectee. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to any aspect of the Agency’s decision not to hire Complainant as an Attorney Advisor. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party. 0120142875 4 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 February 1, 2016 Date Copy with citationCopy as parenthetical citation