[Redacted], Damion L.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

Appeal No. 2020001271 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damion L.,1 Complainant, v. Thomas B. Modly, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001271 Agency No. DON-17-40085-47472 DECISION On July 10, 2018, 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 June 21, 2018, 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 worked as a GS-1101-09 Performance Assessment Representative (PAR) in the Facilities Service Contracts Management/Facilities Support Branch, Facilities Engineering and Acquisitions Division, Public Works Department at the Agency’s Norfolk Naval Shipyard facility in Portsmouth, Virginia. Complainant is black and African-American, and he was born in 1959. Complainant had engaged in protected activity by filing multiple EEO complaints prior to the time of events giving rise to this complaint. In April 2017, Complainant applied for a GS-0802-09/11 Engineering Technician position, which was advertised under vacancy announcement number STE-10007867-17-NA-644948-M. 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. 2020001271 2 In May 2017, Complainant was one of the 16 qualified candidates referred on the Merit Promotion Certificate of Eligibles. Complainant’s third-line supervisor, the Deputy Public Works Officer, was the Selecting Official (SO) for this vacancy. SO stated that three selection panelists (P1, P2, P3) and an EEO observer (E1) evaluated the resumes, invited the top candidates for interviews, and conducted interviews. P1 averred that the three selection panelists independently evaluated the 16 candidates’ resumes prior to meeting to discuss their evaluations. According to P1, the panel invited the top five candidates based on average resume scores to interview, including Complainant, who received the third-highest resume score. P1 stated that the panel asked the five candidates the same six questions and independently evaluated the responses and that the panelists later met to discuss their impressions. According to P1, the panel unanimously agreed to recommend the candidate with the highest average resume score and the highest average interview score (C1) to SO. Complainant’s average interview score combined with his average resume score ranked him fourth out of the five candidates. P2 stated that although Complainant and C1 had similar experience on paper, C1 gave much more thorough responses during the interview to flesh out his experience than Complainant did. C1, who was white and Caucasian and was born in 1986, had previously completed a 120-day detail as Engineering Technician. SO stated that he selected C1 for the position based on the recommendations of the selection panelists. Complainant stated that he was much more qualified than C1, but he also stated that C1 was given an unfair advantage because he had been detailed into the position. SO averred that Complainant had more formal training than C1, but he stated that Complainant did not demonstrate that he was better qualified in terms of customer service or technical experience. Complainant alleged that by filing EEO complaints he learned that SO is a “suit and tie racist” who has “deep heated hate in his heart” for black people. On November 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), age (born in 1959), and in reprisal for prior protected EEO activity when, on August 3, 2017, he learned that he was not selected for a GS-0802-09/11 Engineering Technician 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. 2020001271 3 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”). Complainant alleged that he was subjected to discrimination when he was not selected for the Engineering Technician vacancy. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant 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). In a selection case, a complainant can attempt to prove pretext by showing that his qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). The Agency’s legitimate, nondiscriminatory explanation for selecting C1 was that his resume and his interview performance demonstrated that he was the most qualified candidate for the position. Complainant argues that he was more qualified than C1 and that C1 had an unfair advantage because he was detailed into the position. Regarding relative qualifications, Complainant has not established that his qualifications are plainly superior to those of C1. In terms of fairness, the Commission has consistently stated that pretext analysis is not concerned with whether the Agency's action was unfair or erroneous but whether it was motivated by discriminatory animus. Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). Although Complainant accuses SO of racism, we find that he has not established by a preponderance of the evidence in the record that the Agency’s legitimate, nondiscriminatory reason was a pretext designed to mask discrimination. 2020001271 4 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020001271 5 “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 January 14, 2020 Date