[Redacted], Byran T., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020001098 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byran T.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020001098 Agency No. ARCEEUR17JUL02510 DECISION On November 11, 2019, 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 20, 2019, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for two positions at the Agency’s United States Army Corps of Engineers (USACE), Europe District facility in Wiesbaden, Germany. The record reveals that he had filed EEO complaints in 2017, challenging his nonselections for USACE vacancies in Korea, Hawaii, and California as well as Agency positions in Texas, Taiwan, and Virginia. On August 31, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American, Hispanic, Native American), age (66), and in reprisal for prior protected EEO activity under Title VII and the ADEA 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. 2020001098 2 1. On July 24, 2017, he was notified he was not selected for the Procurement Analyst, GS-1102-13, position under vacancy number 1890141 ; and 2. On July 24,2017, he was notified he was not selected for the Attorney Advisor, GS- 0905-13, position under vacancy number 1969133, when the Agency cancelled the announcement. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew his request. Consequently, 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. According to the record, Complainant stated he could not name the selecting officials and assumed panels were used to rate and rank candidates. However, he asserted that those involved in his non- selections would be aware of his prior EEO activity because the selecting officials are required to approve all hiring actions in Germany/Europe, they knew his age based upon when he graduated from college, and knew his race since they annotate demographics in USAJobs. Complainant also explained that because he previously worked in Europe and Korea, and there were few Black employees in the contracting arena, many people in contracting knew who he is and would therefore be aware of his race, age, and prior EEO activity. Finally, he stated that management would be aware of his age because of information on his SF-50 and DD Form 214. The Agency noted, however, that the selecting officials and panel members for both vacancies at issue stated that they did not know Complainant, his race, age, or prior EEO activity. Further, the panel members were only provided the candidates’ resume for review and did not see the other documents to which Complainant referred. Consequently, the Agency found that, beyond his speculation, Complainant did not offer any evidence of discriminatory motivation and thus failed to establish a prima facie case of discrimination and reprisal. Further, with respect to Claim 1, the Agency found that Complainant failed to establish that management’s articulated legitimate, nondiscriminatory reasons for the nonselection were pretextual. The Agency noted that the District Contracting Chief (DCC) was the senior rater and selecting official for the vacant position, and that the DCC and a GS-14 Supervisory Contract Specialist, who also would be a panel member (P1), created the evaluation criteria which focused on experience in: 1) procuring and managing job order contracts (JOC); and 2) executing, reviewing, and analyzing contract actions, coordination, and interaction. The DCC, P1 and another panel member (P2) evaluated 21 candidates and determined that five were highly qualified. The Agency noted that the DCC said Complainant was not in the top five because, although he had some cost price analyst experience, Complainant did not have the level of JOC experience they were looking for. Similarly, P1 observed that Complainant did not have the specialized experience working with relevant, Agency contracts and his resume reflected he had been out of the contracting field for over ten years. Consequently, Complainant received a low score and was not interviewed for the position. 2020001098 3 The panel recommended a GS-12 Contract Specialist (Selectee 1), a White male, as the top candidate. They stated that P1 was Selectee 1’s second line supervisor and he had worked directly with him and he had performed very well on various Agency contracts. The DCC also noted that, unlike Complainant’s resume, Selectee 1’s resume reflected the knowledge, skills, and abilities (KSA's) necessary to perform in the Procurement Analyst position. The Agency noted that Complainant did not challenge the Selectee’s credentials. Regarding Claim 2, the Agency noted that the Deputy District Counsel (DDC) stated that he helped prepare the hiring selection plan for the Attorney Advisor position under vacancy number 1969133. The selection plan had a recruiting stream for Expression of lnterest (EOl) open to all USACE career attorneys and a recruitment action through USA Jobs. There were a total of approximately 105 applicants from both lists. The selection panel members consisted of DCC and two panel members (P3 and P4). The panel rated the resumes on experience with Government contract law, Government fiscal law, international agreements, and oral/written communication. Based on resume review, they interviewed the top five candidates; Complainant was not among them. The Agency considered the DDC’s observation that Complainant’s KSAs did not match those in the announcement and his resume was not tailored to the vacancy announcement. Complainant did not rank among the top candidates. Three of the top candidates were from the EOI and two were from USAJobs. The panel explained that Selectee 2, a younger White female, was hired for the position based on her experience within USACE and her outstanding interview and references. Since Selectee 2 was on the EOI, the panel said they cancelled the USAJobs announcement.2 The Agency found that management had asserted a legitimate, nondiscriminatory reason for the cancellation and that other than Complainant's assertions, he had presented no evidence which would confirm his claim that management's actions were based upon his protected status. Hence, the Agency concluded that Complainant failed to establish that the management's nondiscriminatory reasons were a pretext for illegal discrimination. This appeal followed. 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 record indicates that the Agency considered Selectee 2 to ultimately be a lateral reassignment and that the USA Jobs announcement was kept open in hopes of having funds to make a hire, but when there were no funds, the announcement was cancelled. 2020001098 4 Even assuming Complainant has established a prima facie case of discrimination on all alleged bases, the Commission finds that the Agency has asserted legitimate, nondiscriminatory reasons for the nonselections at issue. Complainant has failed to show that his qualifications were plainly superior to either of the selectees. We also find that Complainant has failed to show that the Agency’s reasons were a pretext for discrimination. Complainant has failed to show by a preponderance of the evidence that the selection decisions were motivated by discrimination. CONCLUSION The Commission AFFIRMS the Agency’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. 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. 2020001098 5 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. 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 22, 2021 Date