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

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020005142 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxwell M.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020005142 Hearing No. 440-2019-00272X Agency No. DON-19-00128-02276 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 14, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND Complainant has been employed as a Police Officer, GS-6, at the Agency’s Naval Station Great Lakes since 2017. On April 22, 2019, he filed a complaint alleging discrimination based on race (Asian Pacific Islander) when he was not selected for the position of Lead Police Officer, GS- 0083-7, using a biased selection process. After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing, and Complainant responded to the request. The AJ subsequently issued a decision by summary judgment in favor of the Agency. 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. 2020005142 2 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The AJ found that Complainant failed to raise any genuine issues of material fact relevant to his allegation which would warrant a hearing. Specifically, the AJ found the following facts were not in dispute: on or about January 14, 2019, a job announcement was posted announcing four vacancies for a GS-7 Lead Police Officer in the Security Department. Eight applicants, including Complainant, applied for one of the four vacant positions. A1, Supervisory Security Specialist at Naval Station Great Lakes, was the selecting official for the positions. A1 established an interview panel to assist him with the selections for the four vacancies. The interview panel consisted of B1, Security Director, B2, the Security Officer, B3, the Deputy Chief of Police, and B4, Senior Enlisted Advisor/Senior Petty Officer, who served as the Master at Arms. A1 established six interview questions for the panel to use and the grading criteria. The panel asked the same questions of each candidate, graded their answers, and provided A1 with the numerical scores. The interview panel members were told to assign five points for an optimal response, three points if the response was partially correct, and zero points if the candidate could not respond/does not respond/or gives totally incorrect information. A1 was not present during the in-person interviews. B1 gave Complainant a score of zero for question numbers 2 and 5. B2 and B3 gave Complainant zero points for questions numbers 2, 5 and 6. B4 gave Complainant a score of zero for question numbers 5 and 6. 2 In addition to the interview questions, each interviewer separately reviewed and graded the candidates resumes and gave their ratings to A1 prior to the interview. The resume worksheet gave points for Patrol Experience, Military Law Enforcement Experience, Education, Certifications/Qualifications for Field Training Officer and Officer in Charge, and Awards. All the members of the interview panel gave Complainant the highest number of points, five, for his career patrol service. He scored lower in military work experience, education, and in years of performance as a Field Training Officer, and as an Officer in Charge. According to the record, 20 percent of the weight of the final score was given to training, education and experience from the resume reviews, and 80 percent to the candidates’ interview scores. Complainant received the lowest resume and interview scores, and the lowest combined score of all eight candidates interviewed.3 A1 made his selections based upon the scoring data that was provided to him by the interview panel and selected the top four scorers. All selectees were Caucasian. 2 Complainant received a total of 45 total points from his interview, while Selectee 1 received 103 points; Selectee 2 received 95 points; Selectee 3 received 95 points; and Selectee 4 received 76 points. 3 Complainant’s combined resume and interview score was 43, while Selectee 1’s combined score was 100.8; Selectee 2’s was 94.6; Selectee 3’s was 85.8; and Selectee 4’s was 67.2. 2020005142 3 The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s nonselection for any of the four positions. The AJ also found that Complainant failed to show the Agency’s explanations were not believable, i.e., Complainant received lower scores on the interview, which accounted for 80% of his score, because he failed to answer some questions altogether. The AJ also found that: There is no indication of pretext by the Agency or discrimination based on race. Assuming the panel members all knew of Complainant's race, and the other candidates’ race, an examination of the resumes does not indicate that the Agency somehow intentionally underscored or over scored any candidate. Although Complainant felt he was more qualified than the selectees, he did not reflect his qualifications in his resume. The AJ noted Complainant’s assertion that the interview board did not ask questions about his training, education, and experience. In response, the AJ noted that the questions were situational based and none of the candidates were asked questions regarding their training, education, and experience during their interviews. The resume worksheet gave points for patrol experience, and the panel gave Complainant the highest rating for his patrol experience of over twelve years. Moreover, he received a lower rating on Certifications/Qualifications for Field Training Officer because he failed to include the number of years of his experience on his resume. 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). In order 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 has failed to establish such a dispute. 2020005142 4 We note in this regard Complainant’s argument on appeal and in his opposition that he identified 47 instances in which he believes the selection panel inflated the resume scores only for the Caucasian candidates. We find that Complainant’s belief does not indicate a genuine issue of material fact warranting a hearing. In addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. The resume score only comprised 20% of a candidate’s combined score, and given Complainant’s performance in the interview, which comprised 80% of the combined score, he has not established that how evaluating the resumes in the manner he would have preferred would have resulted in his selection for one of the positions. Mathematically, the scores for the interviews for the selectees (without any benefit from the resume scores) were sufficient to still result in Complainant’s total score being below those of the four selectees. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including Complainant’s arguments on appeal, we conclude that the AJ 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 order adopting the AJ’s 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). 2020005142 5 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. 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. 2020005142 6 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 22, 2021 Date