[Redacted], Aldo B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020002648 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman F.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000246 Hearing No. 530-2019-00334X Agency No. DON-18-40085-00940 DECISION 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 September 14, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND During the time at issue, Complainant was employed as an Engineering Technician, GS-0802- 11, at the Agency’s Naval Weapons Station in Earle, New Jersey. He filed a complaint alleging discrimination based on race (Black) and age (80) when he was not selected for a Supervisory Engineering Technician position, GS-0202-12, announcement Number ST-1008172-18RBW. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. 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. 2021000246 2 The Agency submitted a motion for a decision without a hearing, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination and harassment as alleged. The instant appeal followed. The Agency advertised a vacancy announcement for the position at issue. Complainant applied for the position online and, along with four other applicants, made the Certificate of Eligible Candidates (Certificate). A panel consisting of three voting members: A1, A2, and A3 reviewed and scored the resumes of the eligible candidates in accordance with a plan that was provided by S1 prior to the compilation of the Certificate. S1 was the first level supervisor for the position and reported to A1. A4 was the non-voting EEO representative on the panel. Complainant was interviewed by the panel. The panel asked the same interview questions covering eight categories and used the same scoring rubric for each of the applicants. The combined resume and interview score for C1 (Caucasian, 45 years of age), who was the selectee, was 84 out of 120 total possible points. Complainant’s combined score was 78 out of 120.2 Two younger Caucasian candidates had lower scores than Complainant. The selection panel recommended C1 because he was the highest total scoring candidate. According to the record, none of the voting members were aware of Complainant’s age. A1 and A2 were also unaware of Complainant’s race. A3 believed that Complainant was Black. A4 observed no evidence of prohibited personnel practices and observed no evidence that race or age were factors in the selection process. The AJ found that there was nothing in the record to show that the Agency deviated from the normal selection process, whereby the applicants’ resumes, interview responses, and education were reviewed and rated by the three-member interview panel. The AJ further found that all the applicant’s resumes were graded on 18 categories, and that the resume carried the most weight in the selection process. According to the AJ, “[i]n view of [C1’s] credentials, Complainant cannot show that he was demonstrably superior to [C1]. I cannot find that the disparities in Complainant’s and [C1’s] qualifications are of such weight that no reasonable person, in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question.” Finally, the AJ found that the record was devoid of any evidence that the Complainant’s non-selection was based on unlawful discrimination; rather, the record showed that he simply did not score well enough on the three components of the application process as compared to C1. 2 Complainant received an interview score of 30, which was the highest of all the applicants, and a resume score of 48. C1 received an interview score of 28.7, and a resume score of 55.3. C2, the alternate selectee, received a total score of 80 (interview score of 27.8, resume score of 53.0). 2021000246 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s decision 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. 2021000246 4 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 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. 2021000246 5 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 April 14, 2021 Date Copy with citationCopy as parenthetical citation