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

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2021005050 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kerry B.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021005050 Agency No. 8L1M2000943 DECISION On September 15, 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 September 7, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was a job applicant for an Electronic Integrated Systems Mechanic position at the Agency’s Hill Air Force Base in Hill Air Force Base, Utah. Between January 5 and January 16, 2021, Complainant purportedly applied for the position in question under former federal eligibility. Report of Investigation (ROI) at 226, 228. He was notified that he was not considered for the position because the position was open to only those who served in the competitive civil service, and he served in the excepted service. ROI at 23. 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. 2021005050 2 On October 26, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (63) when, on July 24, 2020, he was notified by email that he was not referred and was not eligible for the position of Electronic Integrated Systems Mechanic, WG-2601-13 from Announcement #8L-Hill-10858601-978339-MFW. 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 Agency, in its final decision, concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant contends that mandatory retirement due to age for military reservist in excepted service Electronic Integrated Systems Mechanic, without a similar requirement for people in that same position in competitive service, is discriminatory based upon age. Complainant further argues that the Agency was discriminatory in not hiring him for the position at Hill Air Force Base pursuant to 5 U.S.C. § 8456. The Agency counters that Complainant was not referred because he did not meet eligibility for the position in question. As such, they deny that he has demonstrated discrimination based upon age. 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021005050 3 For a complainant to prevail, she 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant argued that his nonselection was due to his age, to include failure to select him pursuant to 5 U.S.C. § 8456. ROI at 28-9. Assuming, arguendo, Complainant has established a prima facie case of discrimination, the Commission now turns to the Agency to provide a legitimate, nondiscriminatory reason for its actions. We find that they have done so. Specifically, the job for which Complainant applied was open to career and career-conditional individuals in the competitive civil service, and Complainant had an appointment in the excepted service. Report of Investigation (ROI) at 23, 228. Human Resources (HR) Specialist confirmed that the reason that Complainant was not considered for the position because the position was open to individuals in the competitive civil service and his application showed he held an excepted service appointment. ROI at 228. Concerning 5 U.S.C. § 8456, HR Specialist noted that Complainant only applied under formal federal eligibility, and, as he did not meet the requirements due to his excepted service appointment, he was found ineligible for the position. ROI at 228. HR specialist went on to say, however, that Complainant would also be ineligible under 5 U.S.C. § 8456. Eligibility pursuant to 5 U.S.C. § 8456 has three requirements: (1) the position is located in the commuting area of the individuals former position; (2) the individual is qualified to serve in such a position, as determined by the head of the agency; and (3) the position is at the same grade or equivalent level as the position from which the individual was separated. 5 U.S.C. § 8456(b). HR Specialist noted that, even if Complainant had asserted 5 U.S.C. § 8456 on the application, he would not have been eligible. The position Complainant applied for was in Utah, but his previous position was in Texas. ROI at 229. As such, Complainant did not meet element 1 of 5 U.S.C. § 8456(b). HR Specialist went on to clarify that Complainant’s prior position was a supervisory position and the one to which he applied in Utah was a non-supervisory position. ROI at 229. As such, the position is not at the equivalent level, even if it was the same grade, as Complainant’s previous position. ROI at 229. As Complainant did not meet all of the three elements of 5 U.S.C. § 8456(b), as required by the language of the statue, even if Complainant had applied via such eligibility, the Agency would not have been required to hire him pursuant to the cited statute. Having found that the Agency articulated a legitimate, nondiscriminatory reason for its actions, we now turn to Complainant to provide evidence that the Agency’s actions were merely pretext for discrimination. 2021005050 4 In this case, Complainant averred that, as a civilian employee with the excepted service, he was required to retire at the age of 60, where an employee in the competitive service did not have that same requirement. ROI at 29. He further asserted that this discrepancy denied him additional years of retainment, age growth, and other positions to “rectify this clearly age discriminatory act. My income at 60 was reduced by 50% solely because of my age.” ROI at 29. He put in his statement, “’Retired after receiving written notice [of] decision to separate for loss of National Guard membership due to non-retention by an Enlisted Qualitative Board.’ This was a forced retirement based upon reaching 60 years of age which was a military requirement at the time. Therefore, I was removed from civilian position based on this age requirement.”2 ROI at 201. While the Commission recognizes that Complainant finds that forced retirement at age 60 is unfair and asserts that this is disparate between excepted and competitive service, the Commission cannot find that this provides evidence of discrimination as to his nonselection for this position based upon a protected class. Rather, the Agency opened the position to individuals in competitive service, and Complainant did not meet that qualification. There is no evidence that anyone outside of competitive service was referred to the hiring officials. Moreover, outside of Complainant’s assertion of relative fairness of competitive versus excepted service, and the required age restrictions of each regarding mandatory retirement, Complainant has offered no evidence of discriminatory animus on the part of the Agency. See, generally, Deon C. v. Dep’t of Veterans Aff., EEOC Appeal No. 2021000538 (Feb. 9, 2022) (affirming that favoritism, without more, does not constitute prohibited discrimination). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 259 (1981). Ultimately, an employer has broad discretion to set policies and carry out personnel decisions. Id. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The record is devoid of such evidence. 2 To the extent Complainant argues that his forced retirement at the age of 60 based upon rules of excepted service is discriminatory, that issue is not on appeal before the Commission. 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). If Complainant wishes to pursue such a claim through the EEO process, he is advised to contact an EEO Counselor. 2021005050 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, 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). 2021005050 6 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. 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 October 26, 2022 Date