[Redacted], Quinn B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022000074 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Quinn B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 2022000074 Hearing No. 570-2019-00601X Agency No. BEP-18-0584-F DECISION On September 22, 2021, 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 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Printing Plant Worker/Material Handler, KX-06-02, at the Government Publishing Office in Washington, D.C. During the relevant time, Complainant was an applicant for employment with the Agency. On July 17, 2018, Complainant filed an EEO complaint, which was subsequently amended. Complainant alleged the Agency discriminated against him on the bases of race (African- American), sex (male), and age (over 40) 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. 2022000074 2 1. On May 16, 2018, he was not hired as an Intermediate Plate Printer in Washington, D.C. under Vacancy No. 18-BEP-38-P. Complainant amended his complaint alleging the Agency discriminated against Complainant on the bases of race (African-American), sex (male), age (over 40), and in reprisal for protected EEO activity when: 2. In August 2018, he was not selected for the position of Platemaker (Intaglio), under Vacancy No. 18-BEP-165. 3. In August 2018, he was not selected for the position of Photoengraver, under Vacancy No. 18-BEP-113. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case issued a Notice of Proposed Summary Judgment and afforded the parties the opportunity to reply. The Agency filed its Agency’s Statement in Favor of Summary Judgment. The AJ noted Complainant did not submit a reply.2 The AJ determined that the complaint did not warrant a hearing and issued a decision without a hearing on July 30, 2021. Specifically, the AJ noted that Complainant did not rebut the Agency’s articulated reason that he did not score high enough or show he had the experience to be selected for any of the positions identified. Further, the AJ noted Complainant failed to present any evidence to link the nonselections to his protected groups. Regarding claim (1), the AJ found that Complainant failed to present a prima facie case of sex discrimination as the Selectee was male. Further, in his affidavit when asked to explain how sex was a factor, Complainant replied “N/A.” With regard to the remaining bases, the Agency stated Complainant was not selected because he scored 31 out of a maximum of 228 points in the Job Analysis Assessment, which was not sufficient to qualify for an interview. The Agency noted Complainant’s resume did not indicate he had experience at the journeyman level as an Offset Pressman and/or Plate Printer in Intaglio Printing; using online inspection equipment and monitoring devices; running 8 and 10 color presses; or using tools to maintain equipment as prescribed by the manufacturer specifications. Regarding claim (2), the AJ found that Complainant failed to present evidence that the selection was due to any of his protected groups. The record shows that one of the Selectees was the same race as Complainant and both were the same sex as Complainant. Further, there was no evidence that the decision makers were aware of Complainant’s prior EEO activity. 2 The AJ noted that Complainant submitted a request for an extension of time to reply to the Notice of Proposed Summary Judgment after the deadline to reply had passed. The AJ found Complainant did not show good cause for an extension of time. 2022000074 3 Moreover, there was no evidence to raise an inference that the Agency’s articulated legitimate, nondiscriminatory reasons for its actions were pretextual. Specifically, the Agency noted Complainant was not selected because he scored 63 out of a possible 210 points at the interview stage since he did not show a high level of experience in machining, chemistry, or electroplating, and because the Selectees showed better knowledge in the machinist area. Regarding claim (3), Complainant offered no evidence the selection was based on sex, race, age, or in reprisal for protected EEO activity. The record reveals the Selectee was the same race as Complainant. With respect to the basis of reprisal, Complainant presented no evidence that the decision makers were aware of his prior EEO activity. Moreover, there was no evidence to raise an inference that the Agency’s articulated legitimate, nondiscriminatory reasons for its actions were pretextual. Specifically, the Agency noted Complainant did not score well on the interview since he did not show a high level of experience with desktop publishing software, photography, or manipulation of images. In contrast, the Selectee had a graphic arts degree and desktop publishing software knowledge. Regarding Complainant’s contention that the Selectee was preselected since she was the niece of one of the panel members, we find that even if true, this does not raise an inference that Complainant’s nonselection was based on one of his identified bases. The Agency subsequently issued a final order on August 25, 2021. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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). 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 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. 2022000074 4 Here, however, Complainant has 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. 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order 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. 2022000074 5 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. 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 11, 2022 Date