[Redacted], Mike S., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000321 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mike S.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020000321 Hearing No. 570-2016-00834X Agency No. CRC-15-11-088 DECISION On October 16, 2019, 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 August 12, 2019 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity (EO) Specialist, GS-12, at the Agency’s Civil Rights Center (CRC) in its location in Washington, DC. On May 4, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), sexual orientation (heterosexual), age (49), and reprisal for prior protected EEO activity (2014 grievance regarding fiscal year 2014 performance appraisal) when: 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. 2020000321 2 1. the Office of External Enforcement (OEE) Chief (OC1) failed to select Complainant for the position of Lead EO Specialist, GS-13, under Vacancy Announcement # MS-15-HRC-CRC-070; 2. OC1 made inappropriate comments about Complainant’s FY2014 grievance during Complainant’s interview for the Lead position; 3. OC1 required Complainant to complete a mock intake exercise that was biased toward the selected candidate’s background and experience; and 4. OC1 gave Complainant a “Minimally Satisfactory” rating for FY2014, which impacted his Lead EO Specialist application.2 The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, Complainant stated that he was the best qualified for the Lead position. He stated that he served as acting in the position from October 2014 to January 2015 and has more than 20 years of complaint investigation experience. Complainant stated that the selected candidate (Selectee) did not work in OEE, did not serve as acting Team Lead as he and the second candidate did, and worked in CRC’s Compliance Assistance and Planning instead. Complainant stated that he asserted the alleged bases because the selectee is a Caucasian, transgender male who is in his 30s and that the selecting official, OC1, is Caucasian, female, and openly gay. Regarding claim (1), OC1 stated, after considering the three referred candidates’ qualifications and experience, her experience working with the candidates, and the candidates’ interview performance, she determined each candidate had strengths and weaknesses and no one stood out as the obvious choice. OC1 stated that she conferred with the CRC Director (CD1) and determined that an exercise or presentation may help in her selection. OC1 stated that she did not feel Complainant performed particularly well during the interview, but no candidate was eliminated based on interview performance. OC1 stated that she selected the best one of the three exercise responses and the names had been removed from the responses. OC1 stated, what she later learned was Complainant’s exercise submission, made an inappropriate recommendation and contained editorial errors. As to (2), OC1 stated that she was unaware of a grievance filed by Complainant and does not recall a discussion about a grievance during his interview. OC1 stated that she asked all three candidates, “How would you handle managing personalities within OEE?” For (3), OC1 stated, on January 28, 2015, she sent the three candidates an email informing them of the selection exercise for the Lead position. The exercise was a hypothetical complaint for which the three candidates had to decide to accept or deny the complaint and explain their decision. 2 The record reveals that Complainant requested reconsideration of his performance appraisal rating to the Civil Rights Center Director. The Director modified the narrative for two elements and sustained the rating. During the investigation, the Director described OC1’s rating as “fair and appropriate.” The record also contains a Step 1 Grievance filed January 26, 2015. 2020000321 3 OC1 instructed candidates to send the responses to her assistant so that he could remove any identifying information prior to submitting to her. OC1 stated that the exercise related to the qualifications, skills, and experience needed for the Lead position. OC1 stated that Complainant’s response ranked second. Regarding (4), OC1 stated that Human Resources made the determination whether each candidate met the minimum qualifications for the position, and Complainant was referred to her for an interview. OC1 stated that Complainant’s “minimally satisfactory” rating did not impact her final selection decision. OC1 stated that Complainant needed improvement in written work product. OC1 stated that Complainant was informed of his deficiencies. 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 requested a hearing initially. In a Dismissal Order dated September 11, 2018, the assigned AJ dismissed without prejudice Complainant’s hearing request, citing inability to prosecute for medical reasons. The AJ instructed the Agency to hold the matter until June 11, 2019, to give Complainant an opportunity to refile his hearing request and if he did not do so by that date it should issue a final decision. Complainant did not refile his request, so the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The final decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that OC1 and her Assistant (who sat in on interviews and assisted with selection process) are members of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community and hired the only candidate that is also a member of the LGBTQ community. 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”). 2020000321 4 Disparate Treatment Complainant has alleged that the Agency treated him disparately on the bases of race, sex, age, and reprisal. The bulk of his claim is that the selecting official, OC1, is a member of the LGBTQ community and selected the only candidate who is also a member of the LGBTQ community. He also alleged that OC1 made an inappropriate comment during his selection interview, created an additional step (mock examination) to favor Selectee in the selection process, and rated him as “minimally satisfactory” in the performance appraisal immediately prior to the Lead Specialist selection process. 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). For a 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. 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, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Here, we find the record supports the final agency decision finding that Complainant failed to persuade by a preponderance of the evidence that the Agency acted based on race, sex, age, or reprisal. Regarding claim (1), OC1 stated that she considered the three referred candidates’ qualifications and experience, her experience working with the candidates, and the candidates’ interview performance, and she was unable to identify an obvious choice to select. She stated, as a result, she added an additional component (anonymous hypothetical complaint examination) to the process, which resulted in her choosing Selectee. OC1 stated that she selected the best one of the three exercise responses and the names had been removed from the responses. OC1 stated, what she later learned was Complainant’s exercise submission contained an inappropriate recommendation and editorial errors. For claim (2), OC1 stated that she was unaware of a grievance filed by Complainant and does not recall a discussion about a grievance during his interview. She acknowledged asking all three candidates, “How would you handle managing personalities within OEE?” For claim (3), OC1 stated, on January 28, 2015, she sent the candidates an email informing them of the selection exercise for the Lead position. The exercise was a hypothetical complaint for which the three candidates had to decide to accept or deny the complaint and explain their decision. OC1 stated that the exercise related to the qualifications, skills, and experience needed for the Lead position. As to claim (4), OC1 stated that Human Resources made the determination whether each candidate met the minimum qualifications for the position, and Complainant was referred to her for an interview. OC1 stated that Complainant’s “minimally satisfactory” rating did not impact her final selection decision. OC1 stated that Complainant needed improvement in written work product. 2020000321 5 Complainant failed to show the Agency’s proffered reasons for the disputed actions were a pretext designed to mask discrimination and/or retaliatory animus. Complainant’s allegations about OC1’s actions being motivated by her membership in the LGBTQ community and Complainant being outside of that protected class (sex) are bare assertions for which we cannot find discrimination here. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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). 2020000321 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 May 24, 2021 Date