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

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2021004047 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michel S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004047 Hearing No. 480-2019-00668X Agency No. 18-46188-02115 DECISION 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 May 25, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a Police Lieutenant/Assistant Watch Commander at the Agency’s Joint Base Pearl Harbor Hickam (JBPHH) Security Department in Hawaii. The Agency posted a vacancy for the position of Supervisory Police Officer, GS-0083-09, for which there were four open positions. Complainant believed he was the most qualified applicant because he possessed over 30 years of supervisory experience and had filled in as the Watch Commander over 40 percent of the time during his 30 plus years. Complainant applied for the position and was determined to be qualified along with 31 other candidates. 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. 2021004047 2 A three-person selection panel - which included Complainant’s second line supervisor (S2) - reviewed and scored the resumes based on essential skills, tasks, experience, and qualifications. Applicants’ scores were tallied and the eight individuals with the top scores were interviewed. Complainant was invited to interview. An additional three-person selection panel was formed to evaluate interview performance. S2 was also on the selection panel for the interview process. The interviewees were asked the same ten questions and their responses scored on a scale from zero to five. The panel members independently scored each interviewee using a scoring matrix. The interview scores were tallied, and the scores were submitted to the hiring official. The four individuals with the highest interview scores were offered positions. One of the selectees became Complainant’s first line supervisor (S1). On July 28, 2018, Complainant conducted roll call and counseled his subordinates on the dangers of driving under the influence. He suggested that someone in the organization had recently been disciplined for driving under the influence. Although Complainant did not name anyone explicitly, the individuals present were able to identify the coworker (C1) because he was on administrative duty. S1 was present during the roll call. C1 filed a complaint against Complainant for unprofessional conduct stating that Complaint’s disclosure caused an uncomfortable work environment. In response, S2 asked S1 to issue a record of counseling against Complainant. S1 investigated the complaint and issued the record of counseling. When S2 learned that S1 was present during the roll call and did not address the conduct with Complainant immediately, S2 withdrew the record of counseling against Complainant citing a conflict of interest. S2 instead issued a record of counseling against S1. At the time of the incident, Complainant had a pending EEO complaint against S2 (not the instant complaint). On August 22, 2018, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the bases of race (African American) and in retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 14, 2018, Complainant was not selected for Supervisory Police Officer, GS-0083-09, announcement ST-10089049-CMJ. 2. On July 28, 2018, S1 issued a record of counseling against Complainant at the direction of S2. At the conclusion of the investigation, the Agency provided Complainant 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). Complainant requested a hearing. On December 2, 2019, the Agency moved for summary judgment. Complainant opposed the motion. In an April 29, 2021 order, the AJ granted summary judgment for the Agency. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. 2021004047 3 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). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Complainant has failed to establish such a dispute. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 2021004047 4 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Complainant presents extensive argument that he was more qualified than selectees and that his resume was devalued during the application process. However, the evidence shows that the final selections were made exclusively on interview performance. As such, Complainant’s disputed facts are not material because they do not affect the outcome of the case. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Agency asserts that Complainant was ultimately not selected for one of the four positions due to his interview performance. The record includes the individual interview scoring sheets, which show Complainant was not ranked in the top four by any of the interviewers. Here, Complainant has not established by a preponderance of the evidence that the Agency’s reason is pretextual. One of the members of the interview panel did not know Complainant. Furthermore, the record indicates that Complainant’s answer about a particular question was inferior to the selectees’ responses (Complainant thought a yes or no answer was sufficient, but the interviewees with higher scores provided elaboration). Complainant summarily asserts that his nonselection was related to race because he is the only African American in the civilian supervisory ranks and that because of his over 30 years of experience he was more qualified than the selectees. Bare assertions and subjective belief without evidence of racial animus is insufficient to establish pretext. Regarding claim 2, Complainant has not rebutted the Agency’s legitimate, nondiscriminatory reason for pursuing a record of counseling, namely that a coworker complained that his actions were inappropriate. Complainant argues that he was treated differently than similarly situated employees because similar conduct was attributed to a field training officer (FTO) in his division and the FTO was not issued a record of counseling. However, there is no evidence to suggest that a complaint was lodged against the FTO. Thus, the FTO was not similarly situated and the argument must fail. Furthermore, claim 2 is insufficient to establish that Complainant was subjected to a hostile work environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). A hostile work environment claim generally requires a showing of a pattern of offensive conduct. A single incident or isolated incidents of offensive conduct or remarks generally do no create an abusive environment. Here, even accepting Complainant’s assertions as fact, the interaction described does not rise to level of creating a hostile work environment under the law. 2021004047 5 CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing 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). 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. 2021004047 6 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 6, 2021 Date