[Redacted], Elias R., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020003867 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elias R.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020003867 Hearing No. 430-2019-00057X Agency No. 9B1C1800175 DECISION 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 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., 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 order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) properly issued summary judgment in favor of the Agency, concluding Complainant failed to establish that the Agency's proffered explanations for its actions were pretext to mask discrimination based on race, sex, age, and reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Community Readiness Specialist, GS-09, with the Agency’s 633d Force Support Squadron, Airman and Family Readiness Center, Langley Air Force Base, Virginia. 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. 2020003867 2 Report of Investigation (ROI) at 13. Complainant previously worked at the GS-12 grade level before his position was subjected to a Reduction-in-Force. In October 2017, Complainant applied for the position of Supervisory Airman and Family Readiness, GS-13, advertised under Job Announcement No. 9BAFPC-10055723-007096-SLE. ROI at 238-246. Complainant’s resume, along with the resumes from 34 other candidates, were forwarded to the selecting official (SO) for consideration. Id. at 235-236. The SO then forwarded 11 resumes, including Complainant’s resume, to a three-person selection panel assigned to review and rank the resumes of the candidates. Id. at 103. The panel consisted of the Deputy Commander, the Deputy Director of 733d Mission Support Group, and the Lieutenant Colonel (the Chair) who served as the Chair of the panel. Id. at 59. The panel however did not rank Complainant in the top five of candidates evaluated, and therefore decided not to interview Complainant. Id. at 105-108. The panel then ranked the five candidates who were interviewed and recommended the candidate with the highest score for selection to the SO. Id. The SO then followed the panel’s recommendation and the selectee (Selectee1, Asian, female, 38) was selected for the position. Id. at 108. The Chair of the panel explained that Complainant was not chosen as one of the top five candidates to be interviewed, as his resume showed that he did not have experience across the Army Community Service support spectrum. The Chair averred that Complainant’s resume showed that he had a background mostly in drug reduction, awareness activities, substance abuse training, and counseling qualifications, which did not cover all programming in the Airman and Family Readiness Centers. Id. at 137. In October 2017, Complainant also applied for the position of Lead Work/Life Consultant, GS- 12, under Job Announcement No. 9B-AFPC10065653-991408-VDS, but he was again not interviewed. Id. at 334-341. Complainant’s resume, along with the resumes of over 50 candidates, were forwarded to the SO for consideration. Id. at 330-332. The same SO served as the selecting official for both positions. The SO then forwarded Complainant’s resume along with the resumes of 12 other candidates to a four-person selection panel for consideration for the position. Id. at 111. The panel consisted of Complainant’s first-level supervisor (S1), the Deputy Director of the 633d Mission Support Group, the Supervisor for Airman and Family Readiness, and the Chair who also served as the Chair for the previous panel. Id. at 64. The selection panel ultimately decided not to interview Complainant for the position, as only the top five ranked candidates received interviews for the position. Id. at 113. The SO once again followed the panel’s recommendation and selected the selectee (Selectee2, African-American, female, 49), the panel’s highest ranked candidate. Id. at 113-114. The Chair of the panel similarly explained that Complainant was not chosen to be interviewed because his resume did not show experience leading a variety of family programs as compared to the other applicants. Id. at 141. 2020003867 3 On February 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (65), and reprisal for prior protected EEO activity when: 1. When on or about November 13, 2017, the SO did not select him for the position of Supervisory Airman and Family Readiness GS-13 under Job Announcement No. 9B- AFPC-10055723-00796-SLE. 2. When on February 28, 2018, his first-level Supervisor (S1) and the SO did not select him for the position of Lead Work/Life Consultant, GS-12, under Job Announcement No. 9B-AFPC10065653-991408-VDS. Following 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).2 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 25, 2019, motion for a decision without a hearing and issued a decision without a hearing on March 10, 2020, in the Agency’s favor. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency has failed to produce his deposition dated February 13, 2019, and therefore the Agency failed to produce all the documentation relevant to his case. Complainant additionally argues that the AJ failed to consider his arguments in his cross motion for summary judgment and failed to consider all the evidence relevant to his case. Complainant further maintains that he had more experience than both selectees, stating that he had experience at the GS-12 grade level while Selectee2 had no such experience. He additionally asserts that he was a military veteran, while neither selectee actually served in the military. 2 On April 5, 2018, the Agency issued a partial acceptance/dismissal of Complainant’s complaint. Therein, the Agency accepted claims 1 and 2 for investigation, but dismissed two additional claims for the failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We note that Complainant does not challenge the Agency’s partial acceptance/dismissal on appeal. As such, we shall not address the dismissal of the additional claims. 2020003867 4 In response, the Agency contends that it provided legitimate nondiscriminatory reasons for Complainant’s non-selections, which Complainant did not show were a pretext for unlawful discrimination. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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 The Commission's regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party's evidence and must draw justifiable inferences in the non-moving party's favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. We find the record was fully developed in this case and that the AJ properly determined the case was suitable for summary judgment. 2020003867 5 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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 at n. 13. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination based on his protected classes, we find that the Agency articulated legitimate, non-discriminatory reasons for Complainant’s non-selections. As noted above, the Chair, who served on both selection panels, explained that Complainant was not chosen to be interviewed because his resume did not show experience leading a variety of family programs as compared to the other applicants. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant maintains that he is more qualified than both the selectees because he was a military veteran who previously performed at the GS-12 grade level. We note that in a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectees. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In the instant case, we find that Complainant has not established that his qualifications, while no doubt impressive, were plainly superior to that of Selectee1 and Selectee2. In so finding, we note that Complainant’s qualifications were evaluated by two different selection panels, encompassing several different panel members. The Chair was the only individual who served on both panels, and the other two panel members who evaluated Complainant for Job Announcement No. 9B-AFPC-10055723-00796-SLE both attested that they ranked Complainant near the bottom of all the candidates they evaluated. Also, while the same Chair also served on the panel for Job Announcement No. 9B-AFPC10065653-991408-VDS, the rest of the panel members, comprising of different individuals, similarly attested that they ranked Complainant near the bottom, as he lacked the experienced necessary for the position. As such, both panels did not rank Complainant in the top five based on his qualifications and resume. Therefore, they determined that Complainant should not be interviewed for the positions in question. We note that the SO simply selected the highest ranked selectees based on the recommendations of the selection panels. There is simply no evidence in this case that any of the panel members herein were motivated by discriminatory or retaliatory animus. 2020003867 6 On appeal, we note that Complainant indicated that the Agency failed to produce his February 13, 2019 deposition. Although the record does not contain that deposition, Complainant could have provided the relevant information from his deposition on appeal but failed to do so. Complainant has also not identified how this deposition would change the outcome of his case. We note that the record contains the ROI which included Complainant’s declaration and supplemental declaration. Therefore, based on the totality of the record, we find that Complainant has not established that he was subjected to discrimination when he was not selected for the identified positions herein. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 2020003867 7 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. 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation