[Redacted], Nick N., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 13, 2021

Appeal No. 2020003479 (E.E.O.C. Jul. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick N.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020003479 Agency No. 5K0M1800178TF18 DECISION On May 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 30, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the relevant period, Complainant worked as an Electronic Integrated System Mechanic, WG-2610-12, 752nd Aircraft Maintenance Squadron (AMXS), March Air Reserve Base (ARB), California. On January 31, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on race (African American) and age (52) when, on or around November 1, 2017, he was not selected for the position of Aircraft Overhaul Supervisor, WS- 8801-09, Announcement Number 5K-ART-2011442-010966-DVL. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued the instant final decision on March 30, 2020, finding no discrimination.2 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. 2020003479 2 The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction 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 Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. On July 14, 2017, the Agency posted Vacancy Announcement 5K-ART-2011442-010966-DVL for the position of Aircraft Overhaul Supervisor, WS-8801-09, position, located in the 752nd AMXS, March ARB, California. Complainant submitted his resume for consideration for the subject position. Following the closing of the vacancy announcement, Human Resources reviewed the candidates’ resumes and transcripts to determine if the candidates met the minimum qualifications for the subject position. Twenty candidates, including Complainant, were initially referred for further consideration (the number was subsequently reduced to thirteen candidates, for various reasons). The Aircraft Overhaul Supervisor (“Rater 1”) (Hispanic, over 40), the Aircraft Overhaul Supervisor (“Rater 2”) (Caucasian, over 40) and the Aircraft Maintenance Manager (“Rater 3”) (Asian, over 40) reviewed and evaluated the thirteen candidates’ resumes and required documents. Each of the raters reviewed and scored the candidates separately and then the scores were combined for an overall score. The candidate with the highest score from the rating panel (“the selectee”) (Caucasian, age 34) was chosen for the position. Rater 2, also Complainant’s third-level supervisor, stated that Rater 1 drafted the interview questions, and he gave Rater 1 and Rater 3 the option to use the interview questions or create their own two questions. 2 The Agency reiterated that it had properly dismissed three other claims for failure to state a claim. Complainant did not expressly contest the Agency’s disposition of these three claims, and they will not therefore be further addressed herein. 2020003479 3 He stated that each member had two questions. Rater 2 stated that there was a total of six questions and each question had a possible score of five, five being the highest score. Once the scoring was averaged out, Complainant ranked sixth out of thirteen candidates. The criteria employed for the scoring were as follows: “Education,” “Position Held,” “Extra Duties,” “Resume Review,” and “Known Merit Performance.” Rater 2 stated that he scored the selectee higher than Complainant in the areas of “Education,” “Extra Duties” and “Known Merit Performance.” Rater 2 stated that he gave Complainant no points for education because his resume did not indicate anything other than the standard education held by most employees. Rater 2 stated that at that time, he was not aware that Complainant had completed Community College of the Air Force (CCAF) as CCAF was not listed in his resume. With respect to “Extra Duties,” Rater 2 gave Complainant a score of “0” although he was aware that he had performed extra duties, because these duties were not reflected in his resume. He stated that he gave the selectee “4” points because he included several extra duties in his resume. Regarding “Known Merit/Performance,” Rater 2 gave Complainant a score of “6” out of ten points and had given the selectee a score of “8” because his past performance had exceeded expectations. Rater 1 stated that he and the other two raters selected questions for the interviews. He stated that following the interviews, the matrix that the panel used indicated that Complainant was “middle-of-the road” even before the panel started discussing the candidates. Rater 1 further stated that it was a team decision to choose the selectee for the subject position based on his overall scoring and work experience. Rater 1 noted that in regard to “Extra Duties,” he noted that Complainant had performed his extra duties in a satisfactory manner. However, the Rater noted the extra duties Complainant performed had lacked the intensity in hours, time and commitment of those performed by the selectee. Regarding “Known Merit/Performance,” Rater 2 stated that he rated Complainant a “5” based on his knowledge of Complainant’s duty performance that he met but did not exceed expectations while he rated the selectee a “9” because he had continually exceeded expectations and sought additional responsibilities. Rater 3 stated that Complainant was ranked “in the middle of the road between the interview, resume and performance.3 He did fair well on the interview for me.” She stated that the final consolidated score Complainant received was 56.83 while the selectee received 62.67. Rater 3 stated that the selectee was very strong showing his level of understanding of different aspects of the unit. 3 The record reflects that the Aircraft Maintenance Manager was unable to participate in the CORE-Fact-Finding Conference, but the record contains her declaration. 2020003479 4 Regarding Complainant’s assertion that he should have been chosen over the selectee, Rater 3 stated Complainant “definitely has experience, but [that] does not mean [selectee] does not.” Rater 3 stated that the panel looked at the overall person concept and “I felt that the data that was presented, [selectee] presented broader scope.” The record reflects that the Colonel, also the Commander, officially selected the selectee based on the recommendation from the rating panel. Complainant was notified on March 2, 2018 via email that he was not selected for the subject position. Complainant asserted that he should have been rated more highly for his responses during the interview. Specifically, Complainant stated that his response to the first question was based on the experiences he had gained from his thirty-five years with the Agency, but the panel believed the examples he used were too old to be relevant. Rater 2 noted that Complainant’s score was based, however, upon Complainant’s failure to explain how he had resolved a conflict and his failure to indicate what the outcome of the conflict had been. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decision was a pretext masking discrimination based on race or age. Complainant has not shown that the alleged disparities in qualifications between him and the selectee was “of such weight and significance that no reasonable person, in the exercise if impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). While the record supports a determination that Complainant appears to have a distinguished career and many achievements, he nevertheless did not establish that his qualifications were superior to those of the selectee for the subject position. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020003479 5 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. 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. 2020003479 6 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 July 13, 2021 Date