[Redacted], Pasquale D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001402 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pasquale D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 2022001402 Hearing No. 550-2020-00263X Agency No. DFAS-00181-2019 DECISION On January 18, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 21, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was a job applicant for the position of Military Pay Technician, GS-0545-4/5, at the Defense Finance Accounting Service (DFAS), Defense Military Pay Office, Joint Base Lewis-McChord, Washington, announced under DFAS Vacancy Announcement LS-10445512-19. On June 6, 2019, Complainant filed a formal complaint alleging the Agency discriminated against him based on disability and reprisal when, on March 25, 2019, he was notified he was not selected for the position of Military Pay Technician. 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. 2022001402 2 After an investigation, Complainant was provided with a copy of the investigation file and requested a hearing before an EEOC Administrative Judge (AJ). On December 2, 2021, the AJ issued a Notice of Intent to Issue Summary Judgment (“Notice of Intent”), in which he set forth the claims at issue, the applicable burden of proof, the findings of fact, and the proposed analysis. The Notice of Intent gave Complainant fifteen (15) days to file a response. On or about December 15, 2021, Complainant filed his response to the Notice of Intent. In his response, Complainant failed to cite any record evidence to avoid summary disposition. Thereafter, the Agency filed its Concurrence with Notice of Intent. On December 20, 2021, the AJ issued a Decision and Order Entering Judgment in which he entered summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that no discrimination or unlawful retaliation was established as alleged. The instant appeal followed. 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). 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 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 2022001402 3 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). The undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. At the time of his non-selection for the position at issue, Complainant was not employed by the federal government. He stated that he is a disabled veteran who began working for the Agency in 2009, but he eventually left his position for medical reasons and began reapplying to work at the Agency in 2017. Complainant believed his recent lack of success in being rehired was due to his filing an EEO complaint against the Agency in the past over being denied a reasonable accommodation. While Complainant alleges disability as a basis for the Agency’s alleged discrimination, he stated that he is “not sure if it is the case” that the Agency actually discriminated against him on that basis. Complainant identified his medical condition as Ankylosis Spondylitis, diabetes, and “degenerate back.” The Director was the selecting official for the Military Pay Technician vacancy at issue in the instant complaint. He was aware during the relevant period of Complainant’s medical issues and his filing an EEO complaint related to a reasonable accommodation request, but denied these were factors in his selection decision. The selecting official explained that that the criteria for the selection process was set by Human Resources, and that there was no panel because the subject position was below the grade of GS- 05. The selecting official conducted the interviews. Following the interviews, the selecting official selected three applicants for the subject positions. He stated that the applicants’ applications demonstrated knowledge, skills, and abilities, prior experience, education, reference recommendation and interview results. According to the selecting official, he judged these candidates to be more qualified than Complainant for the position in question and did not select him for an interview. According to the Human Resources (HR) Specialist, she was aware that Complainant applied for the subject position under consideration and was referred to the selecting official. However, Complainant was not selected for the position. The HR Specialist stated that the selecting official sent her an email in January 2018, inquiring if there were any re-hire rights for a former employee. She advised the selecting official that there were no re-hire rights, and if the former employee had retired then special permissions would have to be received prior to hire. Complainant did not prove, by a preponderance of the evidence, that Agency management’s proffered reasons for the selection decision was a pretext designed to mask disability discrimination or unlawful retaliatory animus. Complainant has not shown that the alleged 2022001402 4 disparities in qualifications between him and the selectees were “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] 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). CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation. 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 2022001402 5 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 January 31, 2023 Date