[Redacted], Arturo B., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2021002496 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arturo B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021002496 Agency No. DON 20-67400-01831 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2021, final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was a federal retiree and an applicant for employment with the Agency for a position at Camp Foster in Okinawa, Japan. On May 7, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Asian), national origin (India), religion (Islam), age (76), and in reprisal for prior protected EEO activity when, on April 15, 2020, the selecting official (SO), Director Environmental Affairs Branch, did not select Complainant for the position of Supervisory Physical Scientist (Environmental), Announcement No. ST-10698628-20-RPF. 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. 2021002496 2 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 EEOC Administrative Judge. 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. The instant appeal followed. In its final decision, the Agency found that Complainant was not selected for the position because, according to SO, Complainant had “numerous unexplained gaps in [his] resume”; the position at issue did not meet the Agency’s requirements for a reemployed retired annuitant such as Complainant; and, since Complainant’s resume indicated that he had been outside of the United States since August 2010, Complainant would not have been eligible for hire under Agency policy. In addition to SO, two panel members also reviewed resumes for the position. One panel member, Deputy Environmental Director, confirmed that Complainant was not selected because his status as an annuitant made him ineligible for further consideration for this position under Agency policy. The other panel member, Supervisory Physical Scientist, also stated that “the position did not meet the criteria for consideration of hiring a reemployed [a]nnuitant.” Furthermore, the selectee2 for the position was employed by the Agency as a Department Head, Environmental & Emergency Department, GS-13, at the time of her selection. Her resume also indicated she had over 15 years of relevant work experience and had earned a master’s degree. The Agency concluded that Complainant failed to establish that the Agency’s legitimate reasons for not selecting him were pretextual. Moreover, it found “that Complainant’s experience and qualifications are [not] so plainly superior [to selectee’s] as to warrant a finding of pretext.” The Agency determined that Complainant’s arguments consisted of only “his unsubstantiated assertions, opinions, and conclusions” and that he “provided no evidence of a causal connection between his [protected bases] and the non-selection in question.” 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”). 2 The selectee declined the offer for the position, and no alternative selection was made. Ultimately, the job opening was cancelled. 2021002496 3 Assuming Complainant established a prima facie case of discrimination on all alleged bases, we find that the Agency provided legitimate, nondiscriminatory reasons for why Complainant was not selected for the position. The hiring committee believed he was ineligible for consideration based on his retired annuitant status and on the fact that he had worked overseas for a long period of time. In addition, the selectee was well-qualified and eligible for the position. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, we AFFIRM the Agency’s final 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. 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. 2021002496 4 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. 2021002496 5 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 March 14, 2022 Date