[Redacted], Donatello V., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal No. 2020001017 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donatello V.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001017 Agency No. DON 16-62473-00064 DECISION On October 30, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 26, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Construction Manager, Architect, GS-0808- 12, with the Resident Officer in Charge of Construction (ROICC) at the Agency’s Camp Pendleton, Navy Facilities Engineering Command Southwest (NAVFAC SW) in San Diego, California. On August 7, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On November 10, 2015, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on the bases of age (born 1958) and in reprisal for protected EEO activity (previous EEO complaint filed in May 2013) when:2 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. 2020001017 2 a. on or about November 2011, he became aware Merit Announcement #SW-0808-13- 777384PA482273 for Architect, GS-0808-13 was cancelled; b. on or about January 24, 2012, he became aware he was not selected for Merit Announcement #SW1-XXXX-13-569101PA208336 for GS-8XX/020-13 MIOC/Special Projects/Demo/FP/SRM Program Manager; c. on or about February 7, 2012, he became aware he was not selected for Merit Announcement #SW2-XXXX-13-590876PA242226 for a Supervisory Interdisciplinary Position, GS-XXXX-13; d. on or about May 23, 2012, he became aware he was not selected for Merit Announcement #SW2-XXXX-13-607341PA270405 for GS-XXXX-13; e. on or about June 2012, he became he was not selected for Merit Announcement #S2- 0808-13-614354PA277020 for GS-0808-13; f. on or about August 2, 2012, he became aware he was not selected for Merit Announcement #SW2-XXXX-13-681709PA362579 for an Interdisciplinary Engineer, GS-8XXX-13; g. on a date unspecified in Calendar Year 2012, he became aware he was not selected for Merit Announcement #SW2-XXXX-13-754017PA442462 for Interdisciplinary Engineer, GS-XXXX-13; h. on or about November 2012, he became aware he was not selected for Merit Announcement #SW2-XXXX-13-763591PA432431 for an Interdisciplinary position GS- XXXX-13; i. on or about December 2012, he became aware he was not selected for Merit Announcement #SW1-XXXX-13-544935PA135249 for an Interdisciplinary position GS- XXXX-13; j. on or about August 2013, he became aware he was not selected for Merit Announcement #SE3-XXXX-13-937511PA653587 for GS-XXXX-13; k. on or about September 2014, he became aware he was not selected for Merit Announcement #SE4-08XX-13-1128680PA819513 for GS-XXXX-13; l. on or about September 2014, he became aware he was not selected for Merit Announcement #SE4-08XX-13-1182364PA87923 for GS-XXXX-13; 2 For ease of reference, the Commission has re-lettered Complainant’s claims as claims a - n. 2020001017 3 m. on or about July 21, 2015, he became aware that he was not selected for Merit Announcement #SE5-08XX-13-1388372PA042539 for Interdisciplinary Architect, GS- 0808-13 position; and n. on September 10, 2015, he received an email from the Lieutenant Commander, also his supervisor (S1) inquiring as to his whereabouts, asking if his physician had extended his temporary disability and informing him that he could be placed in an Absent Without Leave (AWOL) status if he did not provide adequate medical documentation. On December 9, 2015, the Agency issued a partial dismissal. The Agency dismissed claims (a) - (l) for untimely EEO counselor contact. On appeal, Complainant does not challenge this partial dismissal issued by the Agency. Therefore, we will not address these issues in our decision. Following the investigation of claims (m) and (n), 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 but subsequently withdrew his request on August 21, 2016. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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 complainant to prevail, she must first establish a prima facie 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 Texas Department of Community 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 Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health 2020001017 4 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Non-selection During the relevant period, the Lieutenant Commander was Complainant’s first-line supervisor (S1) and the Deputy Facilities Engineering and Acquisitions Division Director was Complainant’s second-line supervisor (S2). Here, we will assume that the management officials involved in the non-selection were aware of the appropriate ages of the Complainant and the selectee due to the interviews. As well, at least one of the panel members (S1) was aware of Complainant’s prior EEO activity as he knew Complainant had been reassigned to Camp Pendleton as part of a settlement agreement. However, we find that the responsible Agency officials articulated legitimate, non-discriminatory reasons for the selection decision as detailed below. The record reflects that on April 23, 2015, the Agency advertised an Interdisciplinary Engineer or Architect, GS-08XX-13 position located at ROICC, Camp Pendleton advertised under Job Announcement Number SE508XX-13-1388372PA042539. Complainant applied and was referred for selection consideration. The Supervisory General Engineer was the selecting official for the Interdisciplinary Engineer or Architect. She implemented a selection panel consisting of S1 (Complainant’s supervisor), a Supervisory General Engineer and a Construction Manager. The selecting official stated that she asked the Chairperson of the panel to score the resumes and interviews in accordance with the pre-determined crediting plan. Following the interviews, the panel recommended the selectee (born 1973) for the subject position. Complainant was chosen as the second alternate. The selecting official stated that the selectee had the highest score as rated by the panel. The selecting official further stated that she did not select Complainant for the subject position because he was rated lower by the panel which was a deciding factor for her. She also noted that the selectee was the strongest candidate in leadership and mentoring. The selecting official stated that the selectee had prior experience being in charge of a team while on Active Duty in the Marines and mentored co-workers and junior military officers in his current position. The Deputy Facilities Engineering and Acquisitions Division Director, also Complainant’s second-line supervisor (S2), stated that he was part of the three-member selection panel. He explained that the panel used a pre-determined crediting plan based on the qualifications for the position in question and a point system. Specifically, S2 explained there were 80 points available for the resume and 120 points available for the interview. He also noted there were six interview questions each worth 20 points. Each member reviewed the resumes and took notes and rated each candidate score during the interview. After the interviews, S2 stated that he and the panel agreed that the selectee was the highest-rated candidate. 2020001017 5 S2 stated that he gave Complainant a rating of 43 for his resume and 67 for his interview. He noted Complainant scored “fairly well for construction knowledge and experience in his resume and in technical support, but very low in mentorship and leadership.” S2 stated that the Senior Construction Manager duties are much the same as a Construction Manager “except you also serve as a team lead, mentor to the junior staff, and are expected to take on the more complex projects that the other junior staff cannot.” As a result, S2 determined that Complainant did not demonstrate the same extent as the selectee regarding the leadership and mentorship experience that the panel sought. Beyond his bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discriminatory or retaliatory animus. It is undisputed that Complainant was qualified for the position. As a result, he was interviewed for the position and rated by the panel as the third highest of the candidates. It is also true that Complainant had been with the Agency significantly longer than the selectee. However, Complainant has not shown that the alleged disparities in qualifications between him and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). The panel rated the selectee more highly as a result of its perception of his leadership and mentorship experience, qualities they determined were important for the position in question. Complainant failed to establish by a preponderance of the evidence that he was discriminated or retaliated against as he alleged. Threat of AWOL Complainant alleged that on September 10, 2015, he received an email from S1 inquiring as to his whereabouts, asking if his physician had extended his absence due to temporary disability and informing him that he could be placed in an AWOL status if he did not provide adequate medical documentation. Complainant asserted this threat was the result of unlawful retaliatory animus. S1 stated that the last time he saw Complainant at work was August 21, 2015. He noted that Complainant had “sporadic” attendance in the previous months and often showed up to work late. On August 24, 2015, S1 received an email from Complainant which stated, without further elaboration, that Complainant would be out of work for one week. S1 stated that he was aware that Complainant had a doctor’s appointment on August 25, 2015. However, on the following day, August 26, 2015, Complainant left an envelope on S1’s desk which contained Complainant’s doctor’s note stating that Complainant was to be excused from work until September 9, 2015. Thereafter, S1 placed Complainant on approved sick leave and annual leave. He also sent an email to Complainant with a screenshot letting him know how much leave he had left. 2020001017 6 Further, S1 stated that on September 4, 2015, Complainant contacted S2 by email and requested Leave Without Pay. He noted that S2 re-certified Complainant’s timecard with the requested code through pay period ending September 4, 2015. On September 10, 2015, Complainant did not return to work. Subsequently, S1 contacted Human Resources (HR) and the HR Specialist advised him to send an email to Complainant inquiring into his status. The HR Specialist also advised S1 to inform Complainant the types of leave available (i.e. annual leave, sick leave or LWOP) and if he was asking for sick leave, he would need to provide medical documentation for management. S1 acknowledged that Complainant was not pleased that S1 requested additional medical documentation. On September 11, 2015, S1 received an email from Complainant which included his doctor’s note stating that Complainant was to be excused from work until September 30, 2015, with no reason provided. S1 stated that he charged Complainant AWOL for the following dates: September 8-10 and 14-18, 2015. Specifically, S1 explained that he charged Complainant AWOL until he provided the requested medical documentation. On October 25, 2015, Complainant provided the required medical documentation and S1 then converted Complainant’s AWOL to sick leave and LWOP in accordance with his request. Again, the record shows that, during the investigation, S1 articulated legitimate, non- discriminatory reasons for the disputed actions. In sum, he warned Complainant, who was out of work on an extended absence, that he could be charged as AWOL unless he provided adequate medical documentation justifying his absence. When Complainant provided the documentation requested, he was granted approved leave without pay as requested. Complainant has failed to prove, by a preponderance of the evidence, that this proffered reason was a pretext designed to mask unlawful retaliatory animus. CONCLUSION After a review of the record in its entirety, including consideration of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2020001017 7 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. 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. 2020001017 8 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 July 21, 2021 Date