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

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2021001456 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aldo B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001456 Hearing No. 420-2020-00143X Agency No. ARREDSTON19FEB00584 DECISION On December 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 30, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Electronics Engineer at the Agency’s Research and Advanced Concepts Division, SMDC Technical Center in Redstone Arsenal, Alabama. On May 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (African American), sex (male), disability, and age (born 1967) 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. 2021001456 2 1. In October, the Director of Research and Advanced Concepts Division, also Complainant’s supervisor (“S1”) asked him about past drug use during the course of a job interview as it related to qualifying for a Top-Secret security clearance. 2. In October 2018, the supervisor of the eventual selectee was chosen to serve as a panel member (“Panel Member 1”) in the interviews for the position of Interdisciplinary Engineer, NH-0854/0855/0861-04, Vacancy Announcement Number SCBK186884560646. 3. In October 2018, another panel member (“Panel Member 2”) scored Complainant significantly lower than the other panel members thereby affecting his overall rating; 4. On February 12, 2019, Complainant learned he was not selected for the position of Interdisciplinary Engineer, NH-0854/0855/0861-04, Vacancy Announcement Number SCBK186884560646, 5. On unspecified dates in February 2019, he had several racial harassment interactions with S1 to which he asked him to stop verbally and in email. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the AJ held a video hearing on November 18, 2020. Following the hearing at which five witnesses testified, the AJ issued a final decision finding no discrimination. In its November 30, 2020 final action, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 2021001456 3 Claims 2 - 4 - Non-selections 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, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination - 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, as here, 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). In his decision, the AJ determined that, during the investigation into the formal complaint and at the hearing management witnesses articulated legitimate, non-discriminatory reasons for the disputed actions. Complainant submitted a timely application for the position of Interdisciplinary Engineer, NH- 0854/0855/0861-04, advertised in Vacancy Announcement Number SCBK186884560646. Complainant was among the applicants considered by a four-member panel made up Panel Member 1 (white male, born 1963), Panel Member 2 (white female, born 1959), Panel Member 3 (African American female, born 1962) and Panel Member 4 (white male, born 1970). Three candidates, including Complainant, were interviewed by the panel. Complainant’s own supervisor (S1) (white male, born 1966) was the selecting official, who testified that he merely implemented the decision of the selection panel, The eventual selectee was a white male, born in 1982 (about 15 years younger than Complainant). Regarding claim 2, Complainant alleged that the supervisor of eventual selectee (Panel Member 1) was selected to serve as a panel member in the interviews for the position in question. Complainant felt that this action was “rigged” because the supervisor of selectee was part of the panel. Panel Member 1 testified that he was not directed or persuaded to recommend a particular candidate. He was only asked to score the resumes using the provided criteria. 2021001456 4 He explained that the selectee appeared to have more experience in the coordination of actions while leading a team and in the science and technology contracting process. He said the selectee also appeared to have more knowledge and experience in the understanding of research and development (R&D) processes and more than a basic understanding of the effort and proficiency required to transition the technologies that come out of R&D to missile defense weapon systems. It is noted that Complainant’s own supervisor was also involved in the selection decision as selecting official. Regarding claim 3, Complainant alleged that Panel Member 2 scored him significantly lower than the other panel members thereby affecting his overall rating. Panel Member 2 stated that she performed her review of the applications individually and had no conversations with S1 about her scoring. She did not know Complainant and said she was not aware of his race or age. In explaining her scoring she said that the selectee provided more information about the results of what he did than Complainant. She said the selectee showed more involvement in the contractual part of what he was doing on different levels, explained more impact, and presented a better package. Complainant’s package did not support a higher score. Panel Member 3 testified that she scored Complainant higher than the eventual selectee because she found that Complainant showed more experience in Internet Integrated Air and Missile Defense. She confirmed that she was never directed or persuaded to recommend any particular candidate. She stated that she had no reason to believe Complainant’s race, sex, age, or medical condition were factors in his non-selection. Regarding claim 4, Complainant claimed that on February 12, 2019, S1 told him that he was not selected for the position of Interdisciplinary Engineer, NH-0854/0855/0861-04, Vacancy Announcement Number SCBK186884560646, S1 testified that he implemented the decision of the panel, who had reviewed the application packages and interviewed the candidates. He explained that the selectee had the highest score “coming out of the board rankings and he had the best performance during the job interview, during the interview.” With regard to the interview, S1 stated that Complainant had a good performance, but was scored lower than the selectee because he had spoken in generalities. S1 stated that, in contrast, the selectee was specific and spoke in terms of “events and examples.” We conclude that the evidence of record fully supports the AJ’s conclusion that complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons for the selection process and decision were a pretext for discrimination. Complainant argues that he was the better qualified candidate and his resume was superior to the selectee’s because he had over 28 years of experience, has been in the division longer than the selectee and had Level III certifications. However, Complainant has not shown that the alleged disparities in qualifications between him and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that Complainant failed to establish by a preponderance of the evidence that he was discriminated against as he alleged. 2021001456 5 Claims 1 and 5 - Harassment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, Complainant asserted that S1 asked him about past drug use when discussing that the position referenced above required an ability to obtain a Top-Secret security clearance. S1 denied asking Complainant about past drug use but acknowledged asking Complainant if he could get a top-secret clearance and acknowledged telling him to be sure to tell the truth. He claims he told the same thing to all the candidates. Regarding claim 5, Complainant alleged that in February 2019, he had several interactions with S1 that he believed involved racial harassment. Complainant claimed that, in one incident, S1 told another employee and himself that his family had just had a DNA analysis done that showed his wife was partially African American. S1 said that his children ranged from being light- skinned (his son) to dark skinned (his daughter). S1 stated that on one occasion his daughter had a rash, but a physician had problems identifying it. Complainant alleged that S1 then referenced Complainant’s skin as being too dark to see a mosquito bite. S1 denied referring to Complainant at all. Rather, he said he stated he said that with his daughter, it was difficult to tell the nature of her rashes. Complainant also asserted that S1 said something to the effect that a woman he knew growing up said that white people can treat black people the way they do because they do not have a soul. S1 noted that his mother requested the woman leave their house. During his testimony, S1 was also asked if he ever asked Complainant why Black people say “Black power” and why White people cannot say “White power”, he stated no because he does not believe in White power. S1 also stated that he does not recall asking Complainant if he had African or Kenyan clothes or rugs. With regard to Complainant’s assertion that S1 asked if his neighborhood was all Black, he stated “I’m pretty sure I didn’t because I know his neighborhood. He related that to me within the first year of our - - me being a supervisor. A tornado went through that area. I asked him about it. I’m aware of his neighborhood and I’m pretty sure that it’s not all Black.” When asked by the AJ if S1 ever asked Complainant if he could get a sunburn, he stated I don’t believe I ever asked Complainant that question. S1 further denied telling Complainant that there was no such thing as soul food. S1 also denied telling Complainant that Martin Luther King’s “I have a dream speech” was copied from Abraham Lincoln. He claimed he did not ask Complainant why Black people cannot swim or do not hike. Furthermore, S1 stated he does not recall asking Complainant if he was raised by his grandmother. 2021001456 6 The AJ concluded that the weight of the evidence did not support a finding that the vast majority of the insensitive racial remarks Complainant attributed to S1 actually occurred. We find no reason to find the AJ erred in this conclusion as the AJ held a hearing and was in the best position to determine issues of witness credibility. To the extent that a limited number of the remarks occurred, we concur with the AJ that they were too isolated in nature to constitute a violation of Title VII. Moreover, we note that there is no evidence that Complainant, despite being provided with harassment training by the Agency, ever reported any of these incidents to other management officials. CONCLUSION We AFFIRM the Agency’s final action because the Administrative Judge’s ultimate finding, that unlawful race, sex, disability and age were not proven by a preponderance of the evidence, is supported by substantial evidence of record. 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. 2021001456 7 In the absence of a legible postmark, a complainant’s request to 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. 2021001456 8 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 11, 2022 Date