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

Equal Employment Opportunity Commission

Apr 8, 2021

Appeal No. 2020002141 (E.E.O.C. Apr. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harlan P.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002141 Agency No. DON-19-3258A-02741 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 January 9, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND During the relevant period, Complainant served as a Quality Assurance/Test Director, GS-11, for the Agency’s Norfolk Naval Shipyard located in Norfolk, Virginia. On or around December 2018, he applied for a position as an Equipment Specialist, GS-1670-11/12. On June 7, 2019, he filed a complaint alleging that A1, the Operations Oversight Department Director, subjected him to discrimination based on age (over 40), race (Black) and in reprisal for engaging in prior EEO activity when he did not offer him an opportunity to interview for the Equipment Specialist position. A1 was the selecting official for the position. B1, the Evaluation Team Lead, assisted A1 during the interviews. Complainant had no organizational relationship with either A1 or B1. 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. 2020002141 2 Complainant maintained that he applied for the position but did not receive an invitation for an interview even though he was more qualified than those who were interviewed based on his resume. He cited both his education and work in the field of cranes. According to Complainant, he had 19 years of experience as a crane Equipment Specialist, and satisfactory job appraisals. Furthermore, he stated that he performed all aspects of the job announcement in his current role; therefore, he qualified at the GS-12 level. Complainant stated that he did not review the resumes of any of the candidates selected for an interview, and he knew some of them as coworkers. Complainant stated that he emailed A1 and asked why he was not selected for an interview. A1, stated Complainant, decided who to interview based on specific expertise/experience that was not part of the job announcement, i.e., he selected candidates for interviews if they had backgrounds in rigging and operations even though the job posting did not list those qualifications. Complainant maintained that A1 should not have selected interviewees based on something that was not a listed requirement. A1, who was named as a responsible official in a prior EEO complaint filed by Complainant, stated that his only interaction with Complainant was during an interview approximately four years prior. He was provided with the referral certificates for the GS-11 and GS-12 vacancies. There was a total of 21 individuals listed as qualified, including Complainant, and C1, the eventual selectee. According to A1, he reviewed the resumes of the qualified employees to determine who would receive an invitation to interview. A1 stated that he announced the vacancy because they needed an individual with a rigging/operations background due to the promotion of the team’s previous rigger/operator. He stressed that he only interviewed candidates who had sufficient rigging experience. Among the applicants, nine had between nine and twenty-one years of experience in rigging and operations. C1, for example, had 11 years of rigging experience. The remaining candidates were equipment mechanics/inspectors, like Complainant, and lacked rigging and operations experience. A1 stated that he extended invitations for interviews to all nine candidates with rigging and operations experience, but one declined the invitation. Complainant, A1 emphasized, had extensive experience maintaining, inspecting, and load testing cranes but he lacked the requisite rigging and operations experience. A1 asked B1 to serve on the interview panel with him. B1 had no input as to which candidates would receive interviews but he helped develop the interview questions. According to A1, he and B1 conducted the interviews, independently scored the candidates, and then agreed on the selection. Regarding the announcement, which Complainant felt was deceptive because it did not include an explicit mention of rigging and operations experience, A1 stated that Human Resources (HR) dictated what he could include in the job announcement. He stated that HR required all job analysis competencies be derived from the approved Agency assessment library. A1 stated that he could not modify the language. He noted that the job analysis he submitted to HR for the position included several rigging and operations tasks, as well as a specialized experience statement specific to weight handling operations rigging. A1 stated that the hiring representative in HR changed the wording to be more generic. A1 explained that this change was beyond his 2020002141 3 control and resulted in the receipt of applications from candidates with both equipment maintenance experience, like Complainant, and candidates with rigging/operations backgrounds. The announcement indicated that the responsibilities include reviewing rigging gear, load test inspection documentation, performing hands-on condition inspections, and reviewing and test documentation of cranes and/or rigging gear. 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. Complainant requested a final decision from the Agency. The Agency’s subsequent decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant argued that A1 admitted that he did not follow the vacancy announcement or the position description in the process that resulted in C1, a White candidate, being selected. He maintained that he had excellent qualifications, and much more experience in the actual job but was excluded by A1’s decision not to follow the vacancy announcement. He also noted that the resumes of the candidates, including C1’s, were not provided in the investigative report. 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2020002141 4 To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established a prima facie case of discrimination, we find that the Agency provided a legitimate, nondiscriminatory reason for its actions. A1 indicated that he only extended invitations to those applicants who possessed significant rigging/operations experience, because they needed an individual with a rigging/operations background due to the promotion of the team’s previous rigger/operator. We find no persuasive evidence of pretext here. The record contains a chart listing each of the 21 applicants and ranking them regarding various factors, the first factor being “Rigging Experience.” No applicant who, like Complainant, lacked rigging experience received an interview. Complainant, himself, stated that to his knowledge at least two of the nine applicants invited to interview were Black, and at least three were over 40. We find that Complainant simply did not establish that discriminatory animus played any role here. Complainant had 19 years of Equipment Specialist experience which was noted on the chart evaluating the applicants, but it was not the type of experience that A1 was seeking. We have repeatedly held that mere years of service, or length of service, does not necessarily make an individual more qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither does years of service automatically make an individual more qualified. Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19, 1991). The Commission will not substitute its judgment for the judgment of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6. 1998). We find no such evidence here. With respect to Complainant’s contentions on appeal, we note that the issue before us is not to discern whether A1 violated Agency staffing procedures with respect to how he determined who to interview, but rather our role is to determine whether A1 discriminated against Complainant based on his race, age, or previous EEO activity. As noted above applicants who, like Complainant, were Black and over 40 were invited to interview because they possessed rigging/operations experience. Moreover, Complainant’s resume does not indicate that he had rigging experience, and like 12 other applicants he was not interviewed. Finally, to the extent that Complainant believed that the record was deficient because the resumes of the other candidates were not contained in the record, he could have requested an administrative hearing and requested the resumes pursuant to the discovery process. 2020002141 5 He provided no evidence that the nine applicants who were offered interviews did not possess enough rigging/operations experience as stated by A1 and B1. We find, under the circumstances, that the investigation was adequate. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2020002141 6 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 April 8, 2021 Date