[Redacted], Hyman W., 1 Complainant,v.Scott de la Vega, Acting Secretary, Department of the Interior (Geological Survey), Agency.

Equal Employment Opportunity Commission

Feb 16, 2021

Appeal No. 2020000904 (E.E.O.C. Feb. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hyman W.,1 Complainant, v. Scott de la Vega, Acting Secretary, Department of the Interior (Geological Survey), Agency. Appeal No. 2020000904 Agency No. DOI-USGS-19-0096 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2019, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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. ISSUE PRESENTED The issue is whether Complainant established whether the Agency discriminated against him based on his age, color, disability, national origin, race, and/or sex when it did not select him for a promotion. 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. 2020000904 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemist (GS-11) at the Agency’s National Water Quality Laboratory in Lakewood, Colorado. On June 28, 2018, the Agency posted two vacancies for a Chemist (GS-12) under vacancy numbers RES-2018-0229 (MP) and RES-2018-0230 (DEU). Report of Investigation (ROI) at 281-6, 328-33. Complainant stated that he applied for the MP position, which was a merit promotion for current federal employees. Complainant stated that he participated in a telephone interview, with a four-person panel. Complainant noted that while there were two vacancies, only one selection was made, and he believed that the selectee (S1) was American, White, and approximately 40 years old.2 ROI at 192-3, 196. On March 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Indian), sex (male), color (Brown), disability (accent/speech), and age (62) when on October 26, 2018, he was not selected for the position of a Chemist (GS-12), advertised under vacancy numbers RES-2018-0229 (MP) and RES- 2018-0230 (DEU). The Agency accepted this claim for investigation but dismissed seven (7) additional claims of non-selection from October 2010 through September 2017, for untimely contact with an EEO Counselor. ROI at 169-70. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant established a prima facie case of discrimination based on age, color, national origin, and race, but not based on disability or sex. The Agency then found that management officials articulated a legitimate, nondiscriminatory reason for not selecting Complainant when they stated that he was not as well qualified for the position as other applicants. The management officials determined that, while Complainant met the minimum qualifications to be interviewed, other applicants had more extensive and technical experience; had better leadership skills; and answered the questions more fully. The Agency noted that the management officials consistently stated that Complainant ranked in the middle of the candidates. The Agency found that Complainant did not show that the reasons were pretexts for discrimination. For example, while Complainant claimed that he was more qualified for the position because he had more years of experience, the Agency stated that years of experience alone is not evidence that a candidate is clearly superior to other candidates. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 S1 applied for the DEU vacancy. The DEU best qualified list had 27 applicants and the MP list had 18 applicants. The selection panel then chose a total of twelve (12) applicants to interview. ROI at 345, 224-5. 2020000904 3 Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant states that he had applied for promotion opportunities to the GS-12 level for the past ten years and has not been selected. Complainant states that in 2017, when a new Lab Chief arrived, Complainant raised his concerns about not being promoted, and the Lab Chief responded that he would look into the matter and encouraged Complainant to apply for the next vacancy. Complainant states that he applied and was surprised when he was not selected, and that the EEO investigator did not ask the Lab Chief about this. Complainant asserts that he consistently received “Superior” performance ratings, which show that he can “comfortably” take on the responsibility of a GS-12 position. Complainant states that he requested detail assignments and that he had not been given any opportunities. Complainant also states that he recently applied for another vacancy and was not selected for an interview. Complainant states that he later learned that the vacancy was canceled and that the Agency would re-advertise the position. Agency’s Contentions The Agency states that, through the members of the interview panel, it has articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection. The Agency asserts that the interview panelists agreed on a standard set and order of questions, and that the individual members ranked the twelve candidates from best to least qualified, giving Complainant an overall ranking of eighth. The Agency argues that Complainant is unable to show that the Agency’s articulated, nondiscriminatory reasons for choosing S1 are pretexts for discrimination, and that Complainant did not demonstrate that his qualifications are observably superior to S1’s qualifications. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS 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, at Chap. 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”). 2020000904 4 As an initial matter, we note that Complainant raises new claims in his appeal regarding a denial of detail opportunities and non-selection for another vacancy. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should he wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date he filed his appeal (October 21, 2019), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date he receives this decision. In addition, to the extent that Complainant challenges the procedural dismissals of his seven (7) claims of discrimination when he was not selected for earlier vacancies, we note that EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). While 29 C.F.R. § 1614.105(a)(2) provides that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission, we find that Complainant has not provided any justification for an extension of the regulatory time limits. The Agency noted that Complainant completed training in December 2017, and that the EEO posters were prominently displayed in his building; and Complainant acknowledged that he understood the deadlines and “failed to complain earlier, which [he] should have.” ROI at 170, 173. As such, we AFFIRM the Agency’s procedural dismissals of Complainant’s seven (7) untimely claims of discrimination. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). 2020000904 5 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his age, color, disability, national origin, race and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for not selecting Complainant for the GS-12 Chemist position. The selecting official (SO) (age 33, white, no disability, Middle Eastern, White, female) stated that Complainant “fell in the middle third” of the twelve interviewed candidates and that S1 was ranked in the “top four.” SO stated that the first two selectees withdrew and that S1 was selected as an alternate. SO stated that Complainant did not lack any qualifications, but was rated lower than other applicants in the areas of laboratory techniques; leadership and supervision; scientific instrumentation; and project management. ROI at 207-8. One panelist (P1) (age 62, white, no disability, European, Caucasian, male) stated that Complainant’s technical expertise was low because they were looking for Metals and/or Nutrients experience, while Complainant’s experience was strong in Organic Chemistry, and that Complainant’s leadership experience was “on the low end.” P1 added that Complainant’s interview skills were not strong because his responses were short and did not fully answer the questions. P1 stated that he previously interviewed Complainant for other positions and offered to help Complainant prepare for future interviews, but that he never came to P1 for help. ROI at 217- 18. Another panelist (P2) (age 47, white, no disability, USA, White, female) stated that Complainant did not have technical experience in Nutrients or Metals Chemistry/Instrumentation and lacked leadership experience. ROI at 225. P2 noted that she previously served in this position and knew which skills were needed to be successful. ROI at 223. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not provide any arguments or evidence that the members of the selection panel were not worthy of belief. On appeal, Complainant argued that the Lab Chief was not asked about his non-selection, but we note that the Lab Chief stated that he was not on the hiring panel and did not have input into Complainant’s non-selection. ROI at 252. In addition, in a non-selection case, pretext may be found where the complainant’s qualifications are plainly superior to the qualifications of the selectee. 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). Here, Complainant did not provide any arguments or evidence that his qualifications were plainly superior to S1’s qualifications. However, to the extent that Complainant argues that he possessed plainly superior qualifications due to his “Superior” performance ratings, we find that even if Complainant excelled in his current GS-11 position, he needs to show that his skills and experiences meet the specific qualifications from the vacancy announcement. 2020000904 6 For example, the panel members stated that Complainant was not as well qualified in leadership and supervision, and the vacancy announcements noted that applicants would be evaluated on their knowledge, skills, abilities, and/or competencies on leadership and supervision. ROI at 283, 330. A review of Complainant’s resume shows that he had experience supervising employees in his positions in 1987 through 1989. ROI at 305-7. To compare, S1’s resume shows that he held positions as a senior manager, director, technical manager, and supervisor since 2009. ROI at 351- 3. Accordingly, we find that Complainant has not shown that he possessed plainly superior qualifications. Further, the Commission has previously found that an Agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Serv., EEOC Appeal No. 0120110338 (March 23, 2011), citing Texas Dep’t. of Community Affairs, 450 U.S. at 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). We note that in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Texas Dep’t of Community Affairs, 450 U.S. at 259. In this case, there is no evidence in the record that the selection panelists were motivated by unlawful discrimination. As such, we find that Complainant did not establish that the Agency discriminated against him based on his age, color, disability, national origin, race, or sex when it did not select him for a promotion to a GS-12 Chemist position. 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 finding that Complainant did not establish that the Agency discriminated against him based on his age, color, disability, national origin, race, or sex when it did not select him for a promotion. 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. 2020000904 7 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. 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. 2020000904 8 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 February 16, 2021 Date