Ricardo K.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120171356 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ricardo K.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120171356 Agency No. ARBLISS14JUN02164 DECISION On March 3, 2017, 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 January 26, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether Complainant established that he was discriminated against on the bases of race and age when on June 3, 2014, he learned he was not selected for the position of GS-0905-12 Attorney Advisor. 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. 0120171356 2 BACKGROUND At the time of events giving rise to this complaint, Complainant was unemployed but applied for an Attorney-Advisor (General) position, GS-0905-12, at the Agency’s Fort Bliss facility located in El Paso, Texas. On July 18, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American, Hispanic, and Native American) and age (62) when he learned he was not selected for the position at the Ft. Bliss Legal Office in the Legal Assistance Branch. Although Complainant was one of the 137 applicants referred to the Selection panel, he was not one of the five (5) applicants who were referred to the Selecting Official. Complainant contends that his 36 plus years practicing law, 30 years with the federal government as a military and civilian attorney, peaking at the GG-0905-15 level, and his duties as United States Army South (USARSO) Chief of Legal Assistance made him the best candidate for the position. Additionally, he completed the Legal Assistance Course at the Army Judge Advocate General (JAG) School which was a requirement for all military attorneys. Complainant argued that the selecting official and panel members would have been aware of his race and age from information disclosed on his resume and other documents, and that this contributed to his not being selected. The Selection panel members were A1, (race: African-American; age 44; year of birth: 1970), Deputy Staff Judge Advocate, A2 (race: Caucasian; age: 48; year of birth: 1966), GS-0905-14 Supervisory Attorney-Advisor, and A3 (race: Pacific Islander; age: 38; year of birth: 1976), Senior Legal Administrator. The Selecting Official was A4 (race: Caucasian; age: 46; year of birth: 1968), Staff Judge Advocate. They all testified that they had no knowledge of Complainant’s race or age. The Agency explained that, consistent with existing selection protocols, Complainant did not possess the job experience necessary for the position to which he applied; and that his race and age were not determining factors as alleged. The Agency maintained that C1, the selectee, was hired because he possessed the required qualifications and experience for the position, and Complainant did not. A1 stated that as a member of the review panel, his initial goal was to narrow the 137 resumes down to the top twenty that exhibited the highest qualifications and experience established in the KSAs. He admitted to having a prior professional knowledge of C1, and knew from his appearance that he was Caucasian and around the age of 40, but asserted that neither race nor age factored in the assessment of qualifications. A1 stated that Complainant’s resume lacked specialized experience as a Legal Assistance Attorney, and that Complainant was not qualified in legal assistance. A2 stated that he did not recognize Complainant's name when informed of the instant complaint. As the direct supervisor of the position, he provided input to the KSAs. During his independent evaluation of the 137 candidates' resumes, he found 19 resumes with the appropriate amount of legal assistance experience; minimum experience of “two or more years of professional legal experience, acquired after being admitted to the bar, commensurate with the duties and 0120171356 3 responsibilities of the position.” Complainant’s resume identified his proficiency in Administrative Law, but not in Legal Assistance. A2 indicated that he was previously involved in hiring someone who was in their 70s, and greatly respects experience. Upon reviewing Complainant’s resume to refresh his memory to respond to the instant complaint, A2 stated that he discovered that Complainant wrote his race on his resume, which was something he had never seen on an application. A2 maintained that he did not see it at the time they were reviewing resumes for the selection. According to A2, he found it both shocking and disappointing to find that Complainant included his race on his resume, and that race and age were not a consideration for him. A3 stated that race, age, and veterans’ preference were not part of the panel discussion. The panel itself was very diverse (one African American, one Pacific Islander, and one Caucasian). There is no formal rating system for applying veteran’s preference to attorney appointments in the excepted service. A3 stated that Complainant did not clearly articulate his accomplishments during his roughly 17 months as Chief of Legal Assistance in his resume. A4 stated that she did not participate in the resume review process. The review panel referred, in rank of order, five candidates who were interviewed. She discussed the top three candidates with the panel members. She does not recall if she followed their recommendations when making the final selection. She sent her selection to the Judge Advocate General for the Army for approval. She denies knowing the race or age of any of the five candidates prior to making her selection. As for A3, the Legal Administrator, participating in the process, A4 stated that he brought an independent view to the selection board. A4 did not review Complainant's resume until after the instant complaint was filed. Her subsequent review revealed that Complainant was not the best qualified on the referral list. She noted that the majority of his experience was in International and Acquisitions Law. The activity was recruiting for a Legal Assistance Attorney, dealing primarily with Family, Landlord/Tenant and Consumer Protection Law, none of which was the focus of Complainant’s resume. The selectee’s last job was helping to establish Child Support Orders for children of military families as a project of the Texas U.S. Attorney’ General’s Office, specializing in in veteran service members and their dependents, he worked with the Domestic Relations Office, worked with the Servicemembers Civil Relief Act and worked with the Texas District Attorney and was therefore familiar with Texas-specific Justice of the Peace issues and the Texas penal code. The selectee’s recent experience was virtually the same kind of work they do on a day to day basis. A4 stated that a lot of applicants that were referred were not new attorneys and C1 had been out of law school for nine years when selected. She also noted that the panel was not made up of white males; it was racially diverse. Complainant claimed that he was initially referred by the Office of Personnel Management (OPM) for selection under the job vacancy but that C1, a younger white male, was selected because he had friends at Fort Bliss and was pre-selected by the Selecting Official (SO) and a review panelist. Complainant asserted that the law does not allow a non-veteran like C1 to be hired over someone like him, a veteran preference eligible, but that it was done here without OPM approval. 0120171356 4 The Agency explained that Veteran’s preference was not a selection criteria for the job position. Complainant also stated that he should have been selected for the position because the Activity had a duty to affirmatively recruit and identify minority applicants, and that the selecting official and panel members were predominately Caucasian and younger than he was, and the vacancy announcement favored recruitment of the same. Complainant expressed concerns about the Legal Administrator’s qualifications to serve on the panel, and stated that the panel did not have objective criteria on which to base its decisions. The Agency asserted that the Legal Administrator brought an independent view to the selection board, and that neither race nor age factored in the assessment of qualifications or the final selection. Complainant asserted that the panel should have identified veteran applicants for consideration throughout the selection process. Finally, the Agency indicated that Veterans preference was not part of the panel discussion; and that there was no formal rating system for applying veteran's preference to attorney appointments in the excepted service. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant, in pertinent part, reiterates the allegations and contentions set forth above that the Agency has not provided a legitimate basis for hiring C1, as opposed to an older, more experienced minority group attorney, who previously worked for the Army as a Legal Assistance Attorney in the same position. The Agency, among other things, maintains its position that Complainant’s nonselection was based on legitimate, non-discriminatory considerations; and that Complainant’s race and age played no role in his evaluation and eventual non-selection. The Agency asks that its FAD be affirmed. 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 0120171356 5 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 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his burden of proving that the Agency’s actions were pretextual, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). At the outset, we note that with respect to Complainant’s contention the Agency violated Veterans’ preference procedures and pre-selected C1, the Commission has held that pre-selection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not on some prohibited basis. See McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Even if the Agency had pre-selected C1, which we have not found in this case, we find no evidence in the record that it was based on race or age. Regarding Complainant’s entitlement to veterans' preference, it is the Commission’s position that veterans’ preferences accorded pursuant to statute are not subject to challenge under Title VII. See EEOC Policy Guidance on Veterans’ Preference under Title VII, No. 915.056 (August 10, 1990). Given that C1 was of a different race than Complainant, and it is undisputed that he was younger, we find that Complainant established a prima facie case of race and age discrimination. We also find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Selection panel stated that they did not rate Complainant’s qualifications highly because his resume did not list any recent experience in legal assistance, and what experience in that field he did note was not explained substantively so as to give the panel members an understanding of his actual knowledge in the field or what specific legal issues within the general category of legal assistance he had worked on. 0120171356 6 We find no persuasive evidence of pretext here. Complainant’s resume made two vague references to Legal Assistance work. He stated that he, “Render[ed] legal assistance for civilian and military personnel,” and “[A]s Chief of Legal Assistance (Jul 1998 - Dec 1999), Ft Clayton Panama, CZ supervised staff of two military attorneys, l GS civilian legal documents clerk, 1 NCO legal office administrator, 1 GS secretary, and two Panamanian national clerks who provided translation and clerical support. Render legal assistance for civilian and military personnel and all overseas US Government personnel and their dependents.” The record indicates that much of his resume was devoted to International and Acquisitions Law, including his more recent experience. Finally, contrary, to Complainant’s assertion the selection panel was not all-white. The Selection panel was tasked with cutting 137 applications down to about 20. Like Complainant, many applicants were subjected to a process that immediately eliminated 117 applications based on established criteria. We find no persuasive evidence that Complainant’s race and age played a role here.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance of the evidence in the record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 2 According to the record testimony, the panel members did not even recall the fact that Complainant indicated his race on his resume. 0120171356 7 In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120171356 8 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation