[Redacted], Michel K., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022003958 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michel K.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2022003958 Hearing No. 531-2022-00005X Agency No. 54-2021-00330 DECISION On July 14, 2022, 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 July 1, 2022 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s National Centers for Environmental Information, National Environmental Satellite, Data and Information Service in Silver Spring, Maryland. On April 1, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian) and national origin (China) when, on or around February 25, 2021, Complainant’s application for the position of Research Oceanographer, ZP- 1360-4, advertised under Vacancy Announcement Number NSDIS-NCEI-2021-0004, was not referred for consideration and he was not selected for the position. 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. 2022003958 2 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on June 28, 2022. Specifically, the AJ found that, assuming Complainant established a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for picking the selectee, namely that the law required them to do so since the selectee was a military veteran who scored in the “best qualified” or “gold” group among all applicants. The AJ noted that the governing statute mandated that “preference eligibles (such as the selectee) shall be listed ahead of individuals who are not preference eligible” and that the Agency may not select a non-preference eligible, like Complainant, when there is a preference eligible applicant in either the same or a higher category, which was the case here. As for Complainant’s arguments that he was better qualified or that the Agency incorrectly failed to place him in the “gold” group, the AJ found they were not material issues of fact because they were irrelevant to the Agency’s proffered reason that the selectee was chosen because the law required that she, as the sole preference eligible in the gold group, be chosen regardless of Complainant’s qualifications. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that he was discriminated against as alleged. The instant appeal followed. On appeal, Complainant argues that the AJ overlooked material facts at issue, namely that he was not rated during the category rating step of the hiring process, nor placed in any of the quality categories. Additionally, Complainant contends he should have been the only candidate placed in the gold category, while the selectee should have been placed in the silver category, meaning Complainant would have been offered the position despite the selectee’s veteran status. 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). 2022003958 3 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 he 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. As noted above, Complainant asserts on appeal that he was not rated during the category rating step of the hiring process, and not placed in any of the quality categories. Such an argument, however, does not raise a material issue of fact since even assuming Complainant was not rated and not placed in the gold group as he should have been, that does not change the fact that the selectee was rated in the gold group and was a preference eligible candidate whose veteran status mandated her selection over Complainant. Complainant next argues that because the position was a scientific one, preference eligibility rules did not apply. Moreover, Complainant contends he should have been scored in the gold group while the selectee’s score should have placed her in the silver group. However, even assuming arguendo that the Agency incorrectly applied the rules, Complainant still has not presented evidence establishing that his nonselection was based on discriminatory animus towards his protected bases. Complainant argues that animus can be shown by the fact that the percentage of Asian Americans in the facility’s workforce is “drastically” lower than in other Agency Departments. We note, however, that without knowing the size of the facility workforce, such apparent statistical discrepancies have little probative value and are insufficient, absent more evidence, to establish discrimination by a preponderance of the evidence. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ 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. 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. 2022003958 4 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). 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. 2022003958 5 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 17, 2022 Date