[Redacted], Albert S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2020003596 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003596 Hearing No. 420-2019-00300X Agency No. ARRUCKER18SEP03666 DECISION On May 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant period, Complainant worked as a Safety and Occupational Health Specialist at the Agency’s U.S. Army Installation Management Command, U.S. Garrison-Fort Rucker in Fort Rucker, Alabama. On November 1, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him based on sex (male) on or about September 21, 2018, when: a. The Facility Operations Services prevented Complainant from being selected for the position of GS-0018-12 Safety Occupational Health Manager for which he applied for under Job Announcement SCEG188169479641; 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. 2020003596 2 b. The Major, Deputy Commander of Administration, made “advantage allowances” for a lesser qualified female candidate and did not select Complainant for the position of GS-0018-12 Safety Occupational Health Manager for which he applied under Job Announcement SCEG188169479641. Following the Agency’s investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ determined that that there are no disputed material facts to warrant a hearing on Complainant’s claims. She issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 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 2020003596 3 Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the record evidence fully supports the AJ’s determination that the responsible Agency officials articulated legitimate non-discriminatory reasons for the disputed actions. On or about June 9, 2018, Job Announcement SCEG1881169479641, Safety and Occupational Health Manager, GS-0018-12, was posted to USA Jobs website. Complainant applied for the position. On August 3, 2018, the Certificate of Eligibles was issued by the Civilian Personnel Advisory Center (CPAC) and forwarded to the Safety Program Manager for his-pre-interview review of the Knowledge, Skills, and Abilities to recommend the top candidates for the subject position. On August 7, 2018, the name of the top five candidates for the Safety and Occupational Health Management position were forwarded to the Major, Deputy Commander of Administration, the selecting official for the subject position. Complainant was among the five candidates forwarded. The selecting official convened a panel, consisting of the Chief of Quality, the Regional Health Command, and the Facility Manager, to interview the five top candidates. The selecting official stated that two Human Resources representatives observed the interviews. While the interview panel decided to interview all five candidates, only three of the five candidates accepted the invitation to interview: Complainant and two other male candidates. On August 13, 2020, the interview panel interviewed the candidates and recommended Complainant and one of the other male candidate to the selecting official for final selection. However, on August 14, 2018, the CPAC emailed the Safety Program Manager, and copied the selecting official, advising that a named female candidate (Candidate 1) had been added to the referral list. The Safety Program Manager notified the CPAC that the interview panel had been closed, but she advised that Candidate 1 should be considered. Due to the disagreement, the selecting official sought guidance from the Human Resources Director Chief, who confirmed it was appropriate to consider Candidate 1 for the subject position. On August 23, 2018, the same interview panel that had previously interviewed Complainant, and two other named male candidates reconvened and interviewed Candidate 1. The panel then unanimously recommended Candidate 1 for the Safety and Occupational position. On or about August 24, 2018, the selecting official chose Candidate 1 for the position. Thereafter, Complainant received an email on September 21, 2018, notifying that he had not been selected for the Safety and Occupational position. The selecting official stated that he chose the selectee for the Safety Occupational Health Manager position because she had the technical skills “but she also had the energy for the job. The telling that she was going to be the person to shift the culture here is what really made me want to hire her.” He stated that Agency needed someone to get out and meet with people face- 2020003596 4 to-face and generate excitement for the safety program. The selecting official stated that following the selectee’s interview, he contacted multiple references for the selectee and “every single one had very good things to say about her. She was highly endorsed.” In addition, the selecting official stated that he contacted two references for Complainant. Complainant’s previous supervisor stated that while Complainant was a dedicated and always on time, Complainant was very strict about rules. The record contains a copy of the selecting official’s Memo for the Record dated January 15, 2019. Therein, the selecting official noted that the previous supervisor stated that Complainant’s “inflexibility and rigid adherence to certain positions occasionally inhibited his ability to perform effectively as a Safety and Occupational Health Specialist.” He stated that when he asked the previous supervisor if he would re-employ Complainant and he responded, “I think so.” The selecting official then contacted Complainant’s current supervisor. The notes indicate the current supervisor stated that Complainant was good with inspections, identifying and mitigating hazards but needed improvement with his ability and willingness to take instruction and follow orders from his supervisors. The selecting official stated that based on the two reference checks from Complainant’s previous and current supervisors, he decided that Complainant was not going to perform as well in the Safety and Occupational Health Specialist position. The Regional Health Command stated that he was part of the interview panel (Panelist 1). He explained that the panel sought an applicant with experience and leadership. He stated that he chose the selectee for the subject position because of her experience. For example, he noted that the selectee is an Industrial Hygienist who worked in a hospital and has dealt with hospital personnel. Panelist 1 stated that he scored Complainant the highest for the first round of interviews but then the selectee was interviewed and “did very well and was selected.” The Chief of Quality Management stated that she was asked to be part of the interview panel (Panelist 2). She stated that Complainant was her first choice because he had been working as a Safety Official for several years. Panelist 2 stated, however, the downside for Complainant was he had never done medical facility safety. She stated that Complainant and the selectee both would have been the top choices, but the selectee was better. Complainant asserted that he was more qualified than the selectee and should have been selected. Panelist 2 stated, however, simply because Complainant had been in the program longer did not make him “…a better fit, we were looking for someone who was energized…but this came down to references. When you call for references, if those aren’t good, it does not matter how qualified you are, if your references say you are difficult to get along with, then you don’t want that coming into your organization.” Complainant’s second claim addresses a charge that the selecting official made advantage allowances for the lesser qualified female candidate (and eventual selectee) and did not select Complainant for the Safety Occupational Health Manager. The AJ noted that the selecting official followed the appropriate CPAC instructions to include the selectee to the referral list. 2020003596 5 The selecting official did not make any advantage allowances for the selectee. The selectee provided references that provided insight into her work performance, ethnic, ability to get along with others, and motivation while Complainant’s references were “lukewarm.” On appeal, we conclude that beyond his bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. His sex did not appear to have any impact on the selection decisions made. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to 2020003596 6 reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003596 7 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 October 18, 2021 Date