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

Equal Employment Opportunity Commission

Mar 22, 2022

Appeal No. 2020004521 (E.E.O.C. Mar. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vern R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004521 Hearing No. 430-2020-00148X Agency No. 19-42158-01941 DECISION On August 7, 2020, 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 April 3, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant (a 51-year old Caucasian white male) worked as a Nuclear Mechanical Inspector, WL-4701-14 at the Agency’s Norfolk Naval Shipyard in Portsmouth, Virginia. The Agency posted a Nuclear Mechanical Inspector Supervisor, WS-5301-14, position under Request for Personal Action number 886253. Complainant and three other applicants applied and qualified for the position. 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. 2 2020004521 The Agency appointed a three-member Selection Panel (the Panel) to review and evaluate the resumes of the applicants, select applicants for interviews, conduct and score the interviews, and make a hiring recommendation. The Panel made its recommendation to a Selecting Official. IF at 173-174, 181, 199-200, 215. After the resume review and ratings were compiled, Complainant was second out of the four applicants, with an average score of 42.7. The top ranked applicant after the resume review was Selectee (Caucasian, white, Male, age 50+), with an average score of 52.7. Therefore, Complainant and Selectee were offered interviews. In the interviews, the applicants were asked the same basic questions and the Panel members scored their responses. After weighing and combining the average resume scores and average interview scores for each interviewee, Selectee’s total score was 80.92, and Complainant’s was 56.42. Consequently, the Panel unanimously recommended Selectee to the Selecting Official. The Selecting Official reviewed the Panel’s recommendation and supporting documentation and selected Selectee for the Position. IF at 108, 110, 174-179. Complainant believed that his non-selection was based on his protected bases. He asserted that he was more qualified than Selectee due to his “time in the code,” (or length of service) numerous job assignments, and night shift experience, among other things. IF at 168-170; see Complainant’s and Selectee’s Resumes, IF at 120-128. The Selecting Official and the Panel asserted that time-in-code was not among the selection criteria. IF at 177, 185, 202. On June 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), and age (51) when on January 25, 2019, the Branch Head of the Waterfront Office notified Complainant that he was not selected for the position of Nuclear Mechanical Inspector Supervisor, Request for Personal Action number 886253. IF at 68. The Agency accepted the claim for investigation. The Agency however dismissed five additional claims pursuant to 29 C.F.R. §1614.107(a)(2) for untimely counselor contact.2 2 The dismissed claims are: (a) Between December 2014 and October 2016, management did not select Complainant for a Nuclear Inspector Supervisor, even though they had continuously referred to Complainant’s experience and time as a Nuclear Inspector and Work Leader, implying Complainant’s selection; (b) In November 2016, Complainant was not selected for the Nuclear Inspector Supervisor position, certificate number EN 16 BPE-31884S0, and instead, a female with less experience than Complainant was selected; (c) On February 28, 2017, Complainant was not selected for the Receipt Inspector Supervisor position, certificate number EN-16-BPE-31884S0, and instead, a female with less experience than Complainant was selected; (d) In September 2017, the Division Head stated that old timers should “move on” during the “Team of Winners” training that he presented to Code 139; and (e) In 2018, management 3 2020004521 Included in the record is an August 29, 2019, letter which instructed Complainant to notify the Agency if he believed that the accepted claim was not correctly identified. Complainant’s notification was to be provided in writing within seven calendar days of his receipt of the August 29, 2019, letter. Complainant’s notification was also to specify why he believed the claim was not correctly identified. The Agency stated in its letter that if Complainant did not reply, the Agency would consider the “claims as stated above” to be correct. According to the Agency, Complainant did not contact the Agency to contest the accepted claim or assert that he also had a hostile work environment claim “for his complaint.” At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The October 29, 2019 ROI only listed one accepted claim. The dismissed claims were not listed. Complainant challenge the identification of the one claim or how it was stated in the ROI. Complainant timely requested a hearing. On December 26, 2019, the assigned AJ issued an Acknowledgement Order for the one claim at issue. The Acknowledgement Order informed Complainant that he had 30 days to notify the Commission if he contested the dismissal of any claims that the Agency had dismissed in the complaint. The Acknowledgement Order also stated that if Complainant failed to oppose in writing the dismissal of a claim within the 30-day comment period, the opportunity to have the dismissal reviewed “shall be deemed waived.” Complainant did not notify the AJ of any dismissal of any hostile work environment claim that he felt should have been investigated as part of the one accepted claim. Also, at the Initial Conference on February 19, 2020, both Complainant and his Representative, the Agency asserted, “affirmatively confirmed that the claim as stated was correct and was Complainant’s sole claim at issue in this case.” On February 27, 2020, the AJ issued a “Notice of Intent to Issue Decision Without a Hearing (NOI), ordering the parties to respond no later than March 14, 2020. Complainant and his representative failed to respond or request an extension within the requisite period. The AJ determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on March 24, 2020. The AJ found that Complainant could not prove a prima facie case of discrimination because Selectee, like Complainant, was a white, Caucasian, male over the age of 50. detailed a named employee, WS-5301-14, Nuclear Mechanical Inspector Supervisor, to the Nuclear Mechanical Inspector Supervisor position instead of having the position advertised prior to the last supervisor’s retirement. Complainant did not contest the dismissal of the listed claims for the reasons stated by the Agency. Therefore, we AFFIRM the Agency’s dismissal of the listed claims and will not further address them in this decision. 4 2020004521 The AJ also stated that even assuming, arguendo, that Complainant could establish a prima facie case of discrimination, the Agency had articulated a legitimate, non-discriminatory reason for its selection of Selectee. The Agency had explained that based on the detailed process used for the selection, Selectee, not Complainant, was the best qualified candidate because the resume and interview grading resulted in a numerically higher score for Selectee than Complainant. The Agency explained that based on the average resume scores and average interview scores, Selectee’s total score of 80.92 was higher than Complainant’s score of 56.42. Complainant was also weak in key areas specific to meeting the needs of the position. With respect to his resume, Complainant rated lower than selectee in technical control and oversight, planning, scheduling, manning, computer experience and education. With respect to the interview, Complainant rated lower than selectee in his self-assessment of why he would make the best supervisor. Complainant was also weak in determining at least one improvement for his shift assignment to encourage other inspectors, and weak in describing the mentoring system in place for the inspectors. The AJ stated that in comparing Complainant’s qualifications to those of Selectee, the disparities are not “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen Complainant over selectee for the job in question.” The AJ also found that Complainant could not prove pretext, explaining that Complainant’s only evidence of pretext appeared to be: (1) the fact that he had more time-in-code with the Agency; and (2) his subjective belief that he was more qualified. However, the AJ stated, given the makeup of the Selection Committee, the process the Selection Committee used, the consistency of the scores, the qualities the Selection Committee was seeking, and the records of its decision making contained in the record, Complainant’s “evidence” could not prove that the Agency’s articulated legitimate, non-discriminatory reason for its selection of Selectee was a pretext for discrimination on the basis of race, color, sex, or age. 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. CONTENTIONS ON APPEAL On appeal, Complainant states that the AJ erred in the “constructive dismissal” of the harassment portion of his case. He asserts that the AJ’s decision does not identify or include a “Decision Dismissing” the hostile work environment harassment portion of the Complaint. He also lists the additional five claims previously dismissed by the Agency. Complainant states that the AJ did not address the non-selection claim under “the framework of a hostile work environment claim.” Complainant asserts that the harassment portion was improperly dismissed. Complainant requests that the Commission “deny and reverse” the Final Order and find in his favor or, in the alternative, remand this matter for an AJ hearing. 5 2020004521 On appeal, the Agency reiterates its reasons for Complainant’s non-selection. The Agency asserts that Complainant never raised the issue of a missing hostile work environment claim nor attempted to contest the partial dismissal of his claim. The Agency also argues that Complainant had multiple chances to alert both the Agency and the Commission of his alleged missing hostile work environment claim. He did not take advantage of those opportunities. The Agency asserts that Complainant cannot show that he had a viable hostile work environment claim that the AJ improperly or constructively dismissed. The Agency requests that the Commission dismiss Complainant’s appeal and affirm its final order. STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See Id. at Chapter 9, § VI.A. (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”). ANALYSIS AND FINDINGS Dismissal of Hostile Work Environment Claim Complainant contends that the AJ improperly dismissed the hostile work environment portion of his claim. However, the record does not reflect that Complainant raised hostile work environment harassment as a portion of his complaint. More importantly, if Complainant objected to how the one accepted claim was framed by the Agency in its August 29, 2019 letter of acceptance/dismissal, he should have contested the framing at that time, prior to the investigation. See Owen W. v. Dep’t of Veterans Affairs, Agency Request No. 2020002215 (June 2, 2020) (affirming initial decision not to review dismissed claim “because the record clearly shows that Complainant did not challenge the Agency’s framing of his complaint.”) The record also reflects that Complainant had multiple opportunities to challenge the framing of his complaint after the investigation was completed. 6 2020004521 These include after the October 29, 2019 ROI was issued; in response to the AJ’s December 26, 2019, Acknowledgment Order; and at the February 19, 2020, Initial Conference. Complainant failed to take advantage of these opportunities. Rather, both he and his Representative confirmed to the AJ that the non-selection claim was correctly stated; and that it was Complainant’s only claim. Therefore, Complainant’s appeal argument fails. AJ’s Issuance of a Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. 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. Disparate Treatment In this case, while the AJ assumed a prima facie case and determined that Complainant did not establish pretext with respect to the non-selection, we find that Complainant could not even establish a prima facie case because Selectee, like Complainant, was a white, Caucasian, male over the age of 50. To prove a prima facie case of discrimination regarding a non-selection, a complainant must show that: (1) s/he is a member of a protected group; (2) the agency solicited applications for vacancies for the position at issue; (3) s/he applied for the vacancy and was qualified; (4) despite complainant’s qualifications, applicant(s) outside his protected group were instead selected. Cain v. Dep’t of the Army, EEOC Appeal No. 0120072018 (Jul. 10, 2007). 7 2020004521 There is not a prima facie case to be found here because Selectee belongs to all the same protected classes as Complainant. Therefore, Complainant does not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s Final Action adopting it. 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). 8 2020004521 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, Director Office of Federal Operations March 22, 2022 Date