[Redacted], Freddy V., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021003176 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddy V.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021003176 Hearing No. 451-2015-00143X Agency No. 8Z0J15004 DECISION On June 5, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Firefighter at the Agency’s Lackland Air Force Base Civil Engineering Squadron, Fire Emergency Services, in San Antonio, Texas. Complainant contends that on August 12, 2014, he applied for the position of Supervisor Firefighter, GS-9. Report of Investigation (ROI) at 15. He contends that he was qualified for the position and his application was referred on September 15, 2014. Id. After the selection was made, Complainant reported that the selected candidate (Selectee) was less qualified than him. Id. 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. 2021003176 2 Regarding his work experience, Complainant explained that between June 2010 and August 2014, he performed the duties of the position Station Chief approximately 200 times, and another 10 times since finding out about his non-selection. Id. at 15. He also noted that he submitted all of the required certifications, as well as certifications that were not required. Id. at 16. He provided evidence of a bachelor's degree, a master's degree, and credits towards an unfinished doctorate degree. Id. Moreover, he provided evidence of 11 performance awards. Id. He stated that to his knowledge, the Selectee had half the number of awards. Id. The record indicates that there were two panels for the selection process. Id. at 300. For the first panel, the Assistant Fire Chief (Selecting Official 1) reported that the selection process involved a selection matrix which considered: certifications (required and advanced), education level, awards, and general impression of resume. Id. at 303. Using these qualifications, each member on the first panel made a list of top ten applications based on points earned from the matrix. Id. Afterwards, the panel contacted supervisors of applicants to ask questions regarding work ethic, job performance, quality of work, and ability to work with others. Id. The Selecting Official 1 explained that the purpose of the first panel was to apply contents of all of the applicant's resumes against the hiring matrix to find the five highest scoring applications that met all minimum requirements. Id. at 304. At this stage, interviews were conducted with the applicant’s supervisors. Id. The Selecting Official 1 explained that the Selectee had an outstanding resume and was one of the highest scoring candidates. Id. Moreover, he was currently working at the hiring location and consistently displayed the traits of an outstanding Lead Firefighter filling in as Station Chief as needed, always doing an excellent job. Id. He also provided that the Selectee earned a quality step increase in 2014 and was the only candidate who was awarded a certain prestigious Fire Emergency Service Award. Id. All panel members agreed that the Selectee was the top candidate based on the hiring matrix and supervisor interviews. Id. Regarding Complainant's ranking, the Selecting Official noted that Complainant was ranked fourth out of the top five candidates. Id. at 305. He explained that Complainant had a lower general impression rating and lower rating on awards. In addition, Complainant’s interview responses were not as favorable as the Selectees. Id. Nonetheless, the Selecting Official stated that Complainant had the required certifications, or he would not have made the top five list. Id. For the second panel, the Managing Sergeant (Selecting Official 2) recalled that the panel was provided a list of five names and, based upon matrix requirements, references, comments, and the individual resumes, were to determine a top three. Id. at 300. The number one spot was to be recommended for hire for the position. Id. He explained that there were no interviews at this stage. Id. Selecting Official 2 reported that the Selectee was recommended based upon the prerequisites for the job and the items outlined in the hiring matrix. Id. at 300. Selecting Official 2 stated that in his opinion, the Selectee was best suited for the position. Id. 2021003176 3 He also stated that he did not remember how Complainant ranked but explained that he made the best possible choice with the information in front of him, including reference remarks. Id. at 300-01. He clarified that outside of those parameters, there was nothing else to judge. Id. He firmly stated that the choice was based on the matrix and requirements. Id. Additionally, the Deputy Fire Chief (Selecting Official 3) was on the second panel. Id. at 260. He confirmed that the selection process involved the hiring matrix, resumes, a certification look- up, and documentation provided by the first panel. Id. at 262. Selecting Official 3 explained that he chose the Selectee because his resume showed the most personnel leadership, mentorship, experience, and operational performance roles compared to the other candidates. Id. He noted that the Selectees resume was also one of the best written and demonstrated the ability to complete tasks and provide proper written documentation for many reports’ and correspondences as required for the position. Id. Finally, Selecting Official 3 explained that the Selectee had the required certifications as documented in the certification look-up and an education level beneficial to operating at the Station Chief level. Id. Selecting Official 2 and Selecting Official 3 are both African-American. ROI at 250; 298. On November 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on October 7, 2014, Complainant became aware that he was not selected for a promotion to a Supervisory Firefighter position, GS-9. 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 2, 2015, motion for a decision without a hearing and issued a decision without a hearing on April 9, 2021. The AJ determined that the Agency provided legitimate, nondiscriminatory reasons for its action, namely reasons the Selectee was the superior candidate for the position were due to his resume which showed the most personnel leadership, mentorship, experience and operational performance roles compared to other candidates. The AJ determined that Complainant's arguments were insufficient to show how the Selecting Officials’ explanations were pretext for race-based discrimination. When the Agency failed to issue a final order within forty 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). 2021003176 4 CONTENTIONS ON APPEAL On appeal, Complainant disputes that he did not have the required certification for the position in his claim. He states that the Agency and the AJ misrepresented his certification status. He argues that the necessary certifications are listed on his resume. As such, Complainant contends that the Agency's nondiscriminatory reason for his non-selection is illegitimate. In addition, Complainant argues that he was qualified at the time the position was advertised because the certifications were not mentioned. He argues that the certification requirement was added during the selection process after the panel was unable to exclude him through scoring manipulation. Complainant also argues that that the record shows scoresheets altered in favor of the Selectee and Complainant contends that this shows a concerted effort to dilute his qualifications and exclude him as a candidate. In response, the Agency contends that the Selectee was chosen over Complainant when considering factors such as leadership, experience, writing ability, and education. Overall, the Agency reiterates the arguments and conclusions presented in the AJ decision, arguing that the Selectee was the best-suited for the position. ANALYSIS AND FINDINGS Decision Without a Hearing 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 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”). We determine whether the AJ appropriately issued the decision without a hearing. 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). 2021003176 5 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. 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 without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Upon review, we find that Complainant has failed to point with any specificity within the investigative file that indicates a material fact in dispute. While Complainant argues that the scoresheets were altered, he has merely provided a suspicion and no persuasive evidence in support of his statement. Therefore, we find that the AJ properly issued a decision without a hearing. Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Co. 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, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248. 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based his protected class, the Agency articulated legitimate. nondiscriminatory reasons for Complainant's non-selection. In this regard, at the first panel, Selecting Official 1 explained that the Selectee had an outstanding resume and was one of the highest scoring candidates. 2021003176 6 Moreover, Selecting Official 1 noted that the Selectee was currently working at the hiring location and consistently displayed the traits of an outstanding Lead Fire Fighter filling in as Station Chief as needed, always doing an excellent job. Selecting Official 1 also provided that the Selectee earned a quality step increase in 2014 and was the only candidate who was awarded a certain prestigious Fire Emergency Service Award. All panel members in the first panel agreed that the Selectee was the top candidate based on the hiring matrix and supervisor interviews. In contrast, Complainant was noted as ranking in fourth position out of the five ranked candidates. This ranking was due to Complainant’s lower general impression rating, lower rating on awards, and less favorable interview responses. At the second panel, Selecting Official 2 provided that the Selectee was recommended based upon the prerequisites for the job, and the items outlined in the matrix. Selecting Official 3 explained that he chose the Selectee because his resume showed the most personnel leadership, mentorship, experience, and operational performance roles compared to the other candidate. He noted that the Selectees resume was also one of the best written and demonstrated the ability to complete tasks and provide proper written documentation for many reports’ and correspondences as required for the position. Finally, Selecting Official 3 explained that the Selectee had the required certifications as documented in the certification look up and an education level beneficial to operating at the Station Chief level. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In non-selection cases such as failure to hire or to promote, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dept. of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant maintained that he was eminently qualified for the position. 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). They may even 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). 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. Burdine, supra, 450 U.S. at 259. Throughout the record, Complainant has attempted to establish that the Agency inaccurately and erroneously determined that he was not qualified for the position because he lacked the proper certifications. However, we note that the record reflects that the Selectee was chosen for a number of reasons, notably including his resume, high scoring throughout the selection process, and relevant experience. Complainant has not disputed the Selectees qualifications, nor shown that his were superior to Selectee’s. 2021003176 7 Similarly, Complainant has not provided any evidence which would cast doubt on the legitimacy of the selection process. Moreover, Selecting Official 2 and 3 share Complainant’s protected class. We note that Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). While Complainant may have subjective disagreements with the selection process and the use of the scoring matrix, he has not effectively shown any racial animus underlying his ultimate non-selection. We find that Complainant has failed to prove that the Agency's reasons for its actions were a pretext to mask discrimination based on his protected class or show that the Agency was motivated by discriminatory animus. In so finding, we note that Complainant has failed to show that his qualifications were plainly superior to those of the Selectee. Upon review, we find that Complainant has not established that he was subjected to discrimination as alleged. Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. 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 decision. 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). 2021003176 8 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. 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. 2021003176 9 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 April 18, 2022 Date