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

Equal Employment Opportunity Commission

Oct 18, 2022

Appeal No. 2022002689 (E.E.O.C. Oct. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charles B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002689 Hearing No. 440-2019-00281X Agency No. 19-00128-02301 DECISION On April 15, 2022, 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 March 31, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 0083-06, at the Agency’s Commander Navy Region Mid-Atlantic (CNRMA) Naval Station (NAVSTA) in Great Lakes, Illinois. On April 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his race/national origin (Hispanic/Puerto Rican) when, on March 13, 2019, he was not selected for the position of Supervisory Police Officer, GS-0083-08, due to a biased selection process. 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. 2022002689 2 The Agency accepted the complaint and conducted an investigation into the matter. The investigation showed Complainant testified the persons responsible for the discrimination were aware of his national origin due to his last name, appearance and features, and his previously being called upon to provide translation services for Spanish-speaking individuals. On February 10, 2019, Complainant applied for the Supervisory Police Officer, GS-0083-08, position via Vacancy Announcement ST-10416440-19-DAC (“the Position”) on USAJobs. The Vacancy Announcement for the Position also stated: “Specialized experience must demonstrate the following: 1) Directing and making immediate decision in the provisions of law enforcement (LE), antiterrorism (AT), and Force Protection (FP); 2) Performing a full range of duties and responsibilities in preventing terrorist activities, resolving offenses, conducting preliminary and ongoing investigations of incidents; 3) Documenting law enforcement and security events and issuance of citations; and 4) Implementing FPCON measures and RAM in the response to command direction and terrorist threats.” The Vacancy Announcement for the Position stated: “You should list any relevant performance appraisals and incentive awards in your resume as that information may be taken into consideration during the selection process.” Supervisory Security Specialist (“Selecting Official”), Complainant’s third level supervisor, was the selecting official for the Position. Complainant was referred for consideration on two different certificates of eligibles. He was referred on the Competitive Merit Promotion certificate, along with 15 other applicants. Complainant was also one of 14 applicants on the Merit Referral List certificate. On February 15, 2019, Complainant was notified that he had been referred to the selecting official. A panel was convened to review resumes and conduct interviews. This panel consisted of: 1) the current Security Officer, US Navy Ensign (“ENS”), Complainant’s fourth level supervisor; 2) Operations Chief/Supervisory Police Officer (“Chief”), Complainant’s second level supervisor; 3) and Master at Arms (“MA”), who formerly supervised Complainant in 2015-2016.2 During the resume review, the panel members each completed a “Candidate Resume Worksheet” for all of the referred candidates in which they scored each applicant’s civilian law enforcement experience, military law enforcement experience, education, certifications/qualifications, and awards. The panel used the same written criteria to evaluate the resume of each applicant. The individual scores for each applicant were added together to result in a total score. The total scores for the 17 candidates ranged from 7 points to 72 points. 2 The panel originally included a fourth member, Director, who is Selecting Official’s second line supervisor. However, panel records indicate Director was removed from the panel due to medical issues on February 14, 2019, prior to the resume reviews and interviews. (ROI, p. 282). 2022002689 3 Complainant’s resume did not specifically include his experience as a Watch Commander; training and performance as a Field Training Officer (FTO); attendance at the Federal Law Enforcement Training Course (FLETC); Associates or Bachelor’s degree; or any awards he had received. His resume received a score of 9 from Chief, 11 from ENS, and 11 from MA, for a total score of 31 points. Selecting Official testified that after all the applicants’ scores were captured and tallied, a decision was made to only interview the candidates who received scores over 45. Since Complainant’s score did not make the cut off, he was removed from further consideration. Six applicants scored higher than 45 and were granted interviews. Of the six, one requested to be removed from consideration. The remaining five were interviewed on February 28, 2019. Selecting Official testified that there was initially only one vacancy, but later authorization was obtained from higher headquarters (CNRMA N3AT) to hire two Supervisory Police Officers. ENS testified an additional vacancy was added because a Watch Commander accepted a position elsewhere, leading to another vacancy. ENS testified that after the interviews, the panel recommended two of the interviewed applicants for hire and the other three interviewed applicants as alternates. Selecting Official selected the two applicants recommended by the panel. According to Selecting Official, based on appearance, both selectees were white, two of the alternates were white, and the third alternate was African American. On March 13, 2019, Complainant received an email advising him that he was not selected for the Position. 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 29, 2020, motion for a decision without a hearing. On February 24, 2022, the AJ issued a decision by summary judgment concluding no discrimination was established. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends the AJ erred in determining that the 45-point cutoff criteria was not evidence of pretext, and in failing to address the evidence of preferential treatment of an applicant outside of Complainant’s protected class. According to Complainant, the AJ improperly weighed the evidence regarding inconsistent scoring of resumes, failed to draw all justifiable inferences in his favor, and did not believe Complainant’s evidence and argument as required during summary judgment. Lastly, Complainant argues the Agency failed to meet its burden to articulate a specific, clear, and individualized explanation for why it assigned the respective scores and ratings to Complainant and the selectees; therefore, the AJ abused his discretion in finding that the selection criteria was clearly established and uniformly applied. The Agency did not file a brief on appeal. 2022002689 4 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 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. A fact finder is not required to believe arguments unsubstantiated by evidence. Here, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). 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 his favor. Complainant has alleged that his non-selection was motivated by his national origin (Hispanic/Puerto Rican). 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). 2022002689 5 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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 Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency has provided a specific, clear, and individualized explanation for Complainant’s non-selection. According to management officials, Complainant was not selected for the position because, based on the resume he provided, he did not score high enough to be granted an interview. The burden then shifts to Complainant who must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In an effort to establish pretext, Complainant argues that the resume scoring cutoff was established after the resumes had been reviewed and scored, and Selecting Official provided no explanation for why he set the cut off at 45 points. However, this cutoff excluded more than half of the referred applicants from interviews and Complainant’s score of 31 was not close to the minimum score needed for an interview. Complainant also points to “preferential” treatment given to a single applicant outside his protected class, who was interviewed but not selected. However, even if true, favoritism and pre-selection are not evidence of discriminatory animus. Complainant argues the AJ improperly weighed the evidence regarding alleged inconsistency in resume scoring, but again, fails to provide any evidence indicating the Agency was motivated by discrimination or its explanations are unworthy of credence. 2022002689 6 Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Complainant argues that proper scoring of his resume would have resulted in him meeting the 45-point cutoff. However, as noted by the AJ, a review of the resume Complainant submitted reflects that it did not include details referencing the criteria he believes should have resulted in a higher score. Instead, Complainant believes the panel should have awarded him points based on interpretation and inference. We do not find additional explanation regarding the 45-point cut off or resume scoring to be material to the outcome of this case. Complainant has failed to establish any facts that would show the decision not to hire him for the Position was motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 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 2022002689 7 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. The court has the sole discretion to grant or deny these types of requests. 2022002689 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 October 18, 2022 Date