[Redacted], Don S.,1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020002435 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don S.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020002435 Hearing No. 531-2019-00757X Agency No. HUD-00132-2018 DECISION On February 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 23, 2020 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. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to discrimination based on his age and sex when he was not selected for a vacancy posted by the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency’s Office of Public and Indian Housing facility in Detroit, Michigan. 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. 2020002435 2 On October 5, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (65) when, on August 1, 2018, Complainant was not selected for the position of Senior Energy Management Specialist (SEMS) under vacancy announcement 18-HUD-256. The Agency accepted the claim for investigation. The investigative record reflects the following pertinent matters relating to the subject claim. On June 13, 2018, the Agency posted an internal vacancy for the position of Senior Energy Management Specialist2 (SEMS), GS-14, Announcement Number 18-HUD-526. Amongst other requirements and preferred qualifications, the job posting for the SEMS position listed three types of “specialized experience” needed for a candidate: 1. Analyzing agency policies and developing recommendations for creating more energy efficient and environmentally sustaining assisted housing properties; 2. Preparing regulations, handbooks, guidelines, or reports regarding housing energy efficient programs; and 3. Leading a team that evaluates housing energy efficient programs and policies. At the time of his application, Complainant had been employed by the Agency as a General Engineer since September 2014. Prior to that, Complainant worked for the Agency in a limited 16-month term position as an Energy Management Specialist. Although the position titles are similar, the limited-term Energy Management Specialist position had different responsibilities and in a different work unit than the vacancy for which he applied. The main responsibilities of the position in question were to formulate national or agency-wide energy policies, procedures, standards, and guidance. Complainant’s main responsibilities in the limited term role were to assist in the development of Field Operations Energy Centers and to oversee energy performance contracts. After conducting an initial review, the Bureau of Fiscal Services (BFS) scored the applicants and created a certification list of three candidates. The three candidates consisted of the Selectee (female, under 40), Complainant, and a third candidate (male, age unknown). The BFS scored the Selectee at 100 points, Complainant at 99.55, and the third applicant as 96.82. The Selecting Official (female, under 40) did not hold any interviews for the position. Instead, the decision was based on the application packages. 2 To avoid the confusion arising from the similar titles, the position title of “Senior Energy Management Specialist” (title of vacancy at issue) was later changed to “Senior Energy Management Analyst.” The change was meant to make it clearer that SEMS is a senior position of Program Analyst (Energy), rather than the role of Energy Management Specialist. 2020002435 3 The Selecting Official stated that the Selectee and Complainant were both qualified. However, the Selecting Official determined that the Selectee was better suited as she was “already working in the office and had worked in the office for almost three years (starting in 2015) and was essentially performing the same type of work.” The Selecting Official stated that this background would make for “a seamless transition” into the SEMS position. At the time of Selectee’s selection, the Selecting Official was her second-line supervisor. Additionally, the Selecting Official cited the following reasons that made the Selectee a superior candidate: 1) her experience working for an Energy Services Company (ESCO), with Public Housing Authority (PHA) clients, and on PHA Energy Performance Contracts (EPC); 2) her knowledge of other energy efficiency efforts and data/systems in the Federal sphere and the contacts/working relationships she had at other Federal agencies; and 3) the quality of her previous and then current work at the Agency on various Public and Indian Housing (PIH) energy projects/notices being developed or revised, and implemented, by the Office of Public Housing programs or other Agency Headquarter Offices. Complainant refuted these reasons and argued that the Selecting Official blatantly discriminated against him when she chose the Selectee. Complainant asserted that he had an extensive and diverse resume that demonstrated that he was plainly superior to the Selectee. For example, Complainant noted that he more experience working with ESCOs than Complainant. Complainant also argued that he was plainly superior based on his prior limited-term position as an Energy Management Specialist. Complainant also asserted that the Selecting Official acted with favoritism and preselection because the Selectee was already working in the unit and was similar to the Selecting Official in age. 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). Complainant initially requested a hearing but subsequently withdrew his request. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to retaliation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, through counsel, asserts that the record clearly demonstrates that he was not selected for the vacancy based on his age and sex. Complainant asserts that he has extensive experience in the field: including working for three different energy services company, development and responsibility for multi-million-dollar energy performance contracts, analyzing project feasibilities and energy reduction cost savings projects, and more. Complainant acknowledged the Selectee’s own relevant experience but asserted that his experience was very clearly and plainly superior to the Selectee. In response, the Agency provides a detailed brief that essentially reiterated its final Agency decision. 2020002435 4 The Agency reiterates detailed examples as to why the Selectee was the best fit for the position, and why Complainant’s non-selection had nothing to do with his age or sex. Ultimately, the Agency argues that Complainant failed to demonstrate, below and on appeal, that he was a victim of discrimination when he was not selected for the SEMS position. The Agency requests that the Commission affirm its decision. STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See 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 its actions, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2020002435 5 Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant established a prima facie case of discrimination based on age and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Selectee scored higher than Complainant, even if only by .45 points. Additionally, the Agency has explained that the Selectee was chosen because she was the best qualified candidate for the position given her relevant work history of over 20 years and she was already performing similar tasks at the time she was hired. The Agency acknowledged that Complainant’s work history was also extensive but determined that the Selectee’s work history was better aligned and more relevant with the vacancy post. In non-selection cases such as the one now before us, Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). In this matter, Complainant listed a variety of his relevant skills, experiences, and extensive work history. Complainant highlighted his skills development as a former limited-term Energy Management Specialist position; his employment at three different ESCO’s for slightly over six years; his management of multi-million-dollar EPC accounts; his Outstanding performance rating at the time of his application; and more. We note that there was a clarification on the responsibilities of Complainant’s Energy Management Specialist position versus the one at issue. While Complainant’s Energy Management Specialist position undoubtedly provided him with additional experience in the energy-field, it was only similar to the position at issue by title. Nonetheless, Complainant was a highly qualified candidate based on his experience and skills, but the Selectee was as well. While Complainant argued that he was plainly superior, the record does not demonstrate that. Both candidates had extensive experience in the energy field. However, the Selectee had the specialized skills that the Selecting Official was looking for. We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). In reaching our conclusion in this matter, we also considered Complainant's allegations that the selection process was tainted with favoritism and preselection. The Commission has previously determined that an agency may preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). Again, the Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). For the reasons discussed above, we find that Complainant has failed to show that animus based on his age or sex was the real reason for his nonselection. 2020002435 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate against Complainant as alleged. 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. 2020002435 7 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 June 9, 2021 Date