[Redacted], Jarvis M., 1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020002949 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarvis M.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2020002949 Hearing No. 541-2017-00081X Agency No. DOI-FWS-17-0020 DECISION On February 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 30, 2020 final order concerning his equal employment opportunity (EEO) complaint claiming 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. BACKGROUND On November 9, 2016, Complainant, an applicant for employment at the Agency’s Jackson, Wyoming National Fish Hatchery, filed the instant formal complaint. Complainant claimed that the Agency discriminated against him due to his sex (male) and age (over 40) when, on October 16, 2016, the Program Supervisory Fish and Aquatic Conservation, Region 6, did not select him for the Supervisory Fish Biologist position at Jackson, Wyoming National Fish Hatchery advertised under Vacancy Announcement #R6-16-723402-M. 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. 2020002949 2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, Complainant filed his Motion for Summary Judgment on January 29, 2019. The Agency then filed its Motion for Summary Judgment on June 3, 2019. After several reply briefs from the parties, on January 7, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its January 30. 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2020002949 3 The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. On June 17, 2016, the Fish and Wildlife Service (FWS) posted a vacancy announcement for a permanent, fill-time GS-0482-12/13 Supervisory Fish Biologist (Hatchery Manager) position for FWS Region 6, Jackson National Fish Hatchery located in Jackson Hole, Wyoming, under Vacancy Announcement #R6-16-1723402-M which was applied to “Agency Employees Only” and Vacancy Announcement #R6-16-1729750-D which was applied to “United States Citizens.” Complainant applied for the subject position under Vacancy Announcement #R6-16-1723402. At the time he applied for the subject position, he was a GS-13 Supervisory Fishery Biologist at the Agency’s FWS, Pendills Creek/Sullivan Creek National Fish Hatchery Complex in Brimley, Michigan. Complainant had served in this position since 2004. The Region 6, Fish and Wildlife Administrator/Program Supervisor was the selecting official for the Region 6 NFH Supervisory Fish Biologist position. He stated that the Certificate of Eligibles contained 13 candidates, including Complainant. The selecting official further stated that he sought an applicant “who was technically proficient in raising trout. At the Jackson NFH, the hatchery in question, they raise only one subspecies of cutthroat trout…I was looking also for someone with good people skills as well as administrative skills and experience and demonstrated proficiency in working with other organizations, since our work is mostly done in partnership with other agencies and organizations.” In addition, the selecting official stated that another important factor “was a demonstrated interest in developing their leadership and management skills.” The selecting official implemented a panel of three Agency officials, including himself. He and the panel “did a preliminary ranking based on the resumes and applicants. We then decided that because we were under some time constraint, we wanted to interview the lease number of candidates necessary for the process. As a result of the preliminary ranking based on resumes and applicants, eleven candidates out of thirteen candidates were selected to be interviewed for the subject position. Complainant was one of the eleven candidates.” The AJ noted that the interviews consisted of six questions asked of each of the candidates as follows: (1) Motivation for applying; (2) Describe most difficult issue in career; (3) How would employees describe leadership style; (4) what skills need to be developed; (5) Describe personnel issue and how you dealt with it; and (6) Describe a goal or achievement you are most proud of. Following the interviews, the selecting official chose the selectee (female, younger than Complainant) for the subject position based on her work experience. The selecting official stated that the selectee had been successfully acting as Hatchery Manager at the hatchery since March 2014. He also noted that the selectee had taken the initiative to better develop her leadership skills through a variety of training and leadership development opportunities which she voluntarily undertook. The selecting official also noted that the selectee “has work experience beyond fish hatcheries. She has had experience in conducting field biological work and with other organizations.” 2020002949 4 The selecting official noted that compared to the selectee, Complainant “did not provide a lot of detail in responding to question 1. In response to the first question, he said that he had been in a trainee position during the 1990s at Jackson NFH.” Specifically, the selecting official noted that Complainant “had worked only in the National Fish Hatchery System (i.e., only for the FWS). I was looking for someone with more rounded experience, including working for and with a variety of organizations. He did not explicitly express that in his resume.” Moreover, the selecting official stated that Complainant’s sex and age were factors in his decision to select the selectee. The Fish Biologist (female, unknown age), Regional Office in Lakewood, Colorado Fish and Aquatic Conservation stated that she was one of the panelists for the subject position. She averred that Complainant’s interview was “’good.” However, she stated “I don’t know if anything could make [Complainant] more qualified. It was not so much what he did not have or did not do. [Selectee] had an outstanding interview. She was very articulate. Her answers were exactly what we were looking for.” The Fisheries Biologist (male, unknown age), Project Leader at the Agency’s Jones Hole NFH in Vernal, Utah, was the third panelist. He stated that the selectee was “the only one that I recall that indicated in further their career by advancing beyond project leader position. She was interested in upward mobility. Complainant had no indication in upward mobility.” In his decision, the AJ determined that the Agency articulated a legitimate, non-discriminatory reason for its actions. The AJ noted that the Agency asserted while Complainant was well qualified for the subject position, the selecting official determined that the selectee was the best candidate for the position. He further noted that the Agency “presented evidence [selectee] had over a decade of experience at Jackson NFH, was successfully acting in the position at issue for two years prior to the selection, had a breadth of relevant experience throughout her career, appeared motivated to continue to develop her leadership skills and take on additional responsibility, and was rated as the top applicant by all three panelists following the interviews.” Beyond his bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. His race or age did not appear to have any impact on the decision to initially select him. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination. 2020002949 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020002949 6 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 January 8, 2021 Date