[Redacted], Isaiah R., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2020003914 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isaiah R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003914 Agency No. 19-4523A-02188 DECISION On June 24, 2020, 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 June 8, 2020, final decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant, GS-06, at the Agency’s Puget Sound Naval Shipyard in Bremerton, Washington. On July 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when, on March 15, 2019, Complainant learned a female coworker (CW1) was afforded more opportunities to take the H8 Reader Processor Training/Test than he was. The Agency accepted the complaint and conducted an investigation into the matter. During the investigation, Complainant provided details on his work history and explained that, because there was no advancement opportunity in his position as Administrative Assistant, he discussed with his second-level supervisor (S2) about the opportunity to become a Physical Science Technician. 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. 2 2020003914 Complainant was informed that in order to qualify for the position, he would have to pass the H8 Reader Processor Test, which contained a written portion and a practical portion. Complainant indicated that he enrolled in a training course and was provided a book but no time for training, whereas CW1 was given a dedicated lesson plan and time to study. Complainant took the test twice in 2017. He passed the practical portion each time he took the test but failed the written portion. In August 2017, Complainant asked his supervisors and Department head if he could take the test for a third time, and they informed him that he would not be afforded the opportunity to take the test again. Complainant contends that his career was basically over when he was not granted a third opportunity to take the test, so he started the process of retiring. Complainant submitted his retirement paperwork in February 2019. On March 15, 2019 Complainant learned that CW1 was afforded four opportunities to take the H8 Reader Processing Test. Complainant stated that when he brought this to S2’s attention, S2 was not aware that CW1 had been given four opportunities to take the test. Complainant asserts that on April 8, 2019, he was offered the opportunity to retake the training and test for the third time, but he was in the process of retiring so he did not take the test. CW1 passed the test on her fourth try and was hired as a Health Physicist, a position that Complainant acknowledged was different from the Physical Science Technician position that he sought. Complainant contends that CW1 should not have been afforded additional opportunities to take the H8 Reader Processing Test based on Standard Operating Procedure. To support this argument, Complainant attached an excerpt from the Standard Operating Procedure 1A2 CHG- 71, section 4.2.9, which states: After two consecutive failures of the same type of examination, the Head of the Shipyard Work Training Branch, Code 105.42, will send notice to individuals cognizant Shop/Code Division Head requiring action for either enrollment into an initial qualification training course prior to a re-examination, or other means of retraining such as Computer Based Training (CBT). Notice of a third consecutive failure will be sent to the cognizant Department Head. Personnel with three consecutive failures of the same type of examination will normally not be retested and will subsequently be removed from the program. (Complaint File p. 216). During the investigation, S2 stated that he advocated for Complainant to take the test a third time but was told no further resources were to be expanded on Complainant’s behalf. S2’s understanding was that the deciding officials on whether employees can retake the test were the Training Branch Head (RMO1), Supervisory Health Physicist (RMO3), and Technical Manager (CW2) with concurrence from Radiation Health Division Head (RMO4). S2 stated that, when he learned by rumor that CW1 was allowed more opportunities to take the test than Complainant, he strongly campaigned for Complainant to be given a third chance to take the test and training. This additional chance was granted by RMO3 and RMO4. S2 indicated that Complainant was scheduled to retake the training and exam no later than July 2019, but he chose instead to retire. 3 2020003914 During the investigation, the Facility Technical Manager (FTM)2 and RMO3 indicated that, on June 23, 2017 they met with S2 to discuss how to proceed after Complainant failed the second test. FTM kept a record of the meeting and submitted an email dated June 26, 2017, which summarized the meeting. In the email, FTM indicates that he personally doubted that Complainant would be able to complete the test successfully not only due to lack of improvement between Complainant’s first failed test and second test, but also due to report from trainers, anecdotal reports with 105.51 Health Physicists, and conversations with RMO1. According to FTM, RMO1 specified that she wanted to focus her resources on other priorities instead of continuing to allocate them towards Complainant who had shown little progress. The investigation showed that the RMO4 made the decision not to allow Complainant the opportunity to take the test for a third time. In reaching this decision, RMO4 indicated that technical staff reported that Complainant did not have the technical aptitude to complete the qualification and training instructors reported that he was belligerent and argumentative with them. RMO4 indicated that resources should be devoted to other employees who need the qualification to perform their assigned duties, and Complainant was not hired to be a Health Physicist or Dosimetry Processor. Regarding CW1, RMO4 indicated that the H8 Reader Processor Training/Test was a requirement for CW1’s job and failure to qualify would have an adverse impact on her employment. He indicated they made a decision to allow CW1 to retake the H8 Reader Processor Training/Test after CW1’s third failed attempt only if Complainant was offered the opportunity to retake the training/test as well. This was based on a request from S2 that Complainant also be offered the opportunity to retake the test and training. RMO4 indicated that Complainant declined the offer, and CW1 accepted the offer and was successful with passing the written portion and practical portion of the test. During the investigation, RMO2, a Physical Science Technician Instructor, indicated that she was not the deciding official on whether Complainant could retake the H8 Reader Processor Training/Test. RMO2 stated that she believed that Complainant was not allowed to take the H8 Reader Processor Training/Test for a third time because the Agency’s policy was that employees were limited to two attempts. RMO2 stated that she went over Complainant’s written exam with him and Complainant did not agree with the answer key, raised his voice, and got very upset and angry. RMO2 stated that she told Complainant to get out of the room and reported the incident to her supervisor, RMO1. RMO2 indicated that she believed CW1 should not have been allowed to take the course more than twice. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 FTM indicated that he was not a supervisor or deciding official but was involved in the training process at issue. 4 2020003914 The instant appeal followed. Complainant submitted a statement on appeal, arguing that the FAD should be reversed and raising several concerns with the investigative process. The Agency has not submitted a brief in response. 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 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”). Disparate Treatment Complainant’s allegations that CW1 was given more opportunities to take the test at issue give rise to a claim of disparate treatment. A claim of disparate treatment is examined under the three- part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 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). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. Here, even assuming arguendo that Complainant established a prima facie case, his claim still fails. We find the responsible Agency officials have articulated legitimate, nondiscriminatory reasons for the disputed actions. The Agency explained that Complainant was not initially allowed to continue retaking the test because technical staff reported that Complainant did not have the technical aptitude to complete the qualification; training instructors reported that Complainant was belligerent and argumentative with them; resources were devoted to employees who needed the qualification to perform their assigned duties; and Complainant was not hired to be a Health Physicist or Dosimetry Processor. 5 2020003914 The Agency officials also explained that the H8 Reader Processor Training/Test was a requirement for CW1’s job and that, ultimately, Complainant was offered another opportunity to take the test, but he declined the offer. We acknowledge that there are statements of record generally suggesting that CW1 was given the opportunity to take the test more often because of favoritism. However, allegations of favoritism do not violate EEO regulations unless it is based on discriminatory factors. See Sierra-Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) Moreover, although Complainant alleged that the Agency acted because of his sex, Complainant has not proven, by a preponderance of the evidence, that the Agency’s proffered reasons were pretext for discrimination. Therefore, we find he has failed to prove his claim of discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 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. 6 2020003914 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. 7 2020003914 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 November 29, 2021 Date