Roderick P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20180120170973 (E.E.O.C. Dec. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roderick P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120170973 Agency No. DON144019203773 DECISION On January 5, 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 December 19, 2016, 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 based on his race (Chamorro), color (brown), sex (male), age (58), national origin (Pacific Islander) and religion (Catholic) when: (a) he was reassigned from Facilities Management Officer to Program Manager, GS-0343-12, which resulted in being shorted in pay grade for eight years; (b) he was not selected for a temporary promotion (not to exceed one year for the Supervisory Facilities Requirement Specialist, GS-1601- 13, position; and (c) he was notified that he was not selected for the Base Operations Support/Facility Services Contract Management, Program Manager, GS-1101-13, position. 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. 2 Complainant filed seven (7) additional claims. Those claims were dismissed by the Agency on April 15, 2015, as being untimely for failure to engage an EEO counselor within 45-days of the alleged discrimination. These claims will not be addressed in this decision. 0120170973 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facilities Operations Specialist, GS-1640-12 at the Agency’s Navy Facilities Engineering Command in Marianas, Guam. Claim (a): Complainant was reassigned from the Facilities Management Officer position to a Program Manager position, GS-0343-12, that, according to Complainant, resulted in his being shorted in his pay grades for eight years. Complainant stated that he held the positon Facilities Operations Specialist, GS-1640-11. On March 19, 2006, he was promoted to Facilities Management Officer, GS-1601-12. From 2007 to 2012, he held the position of Program Manager, GS-0343-12. In 2013, his position changed to Facilities Operations Specialist, GS-1640-12. Complainant alleged that his position description was classified at a GS-13 level, and the position graded out to a GS-13, but he was being paid as a GS-12 because the final evaluation statement on the position description indicated that the position was a GS-0343-12. He stated that the total points from the classification evaluation was 3380, and the GS-13 scale was 3155-3600. He contended that the position description was not current because of the “verbiage in the evaluation statement,” and that he was never promoted by either selection or reassignment to a GS-13 level. The Agency stated that Complainant’s title was changed, but his grade remained the same. The Agency stated that Complainant’s duties changed, but his new duties were still classified at the GS-12 level. The Agency denied that Complainant’s protected categories were factors in his treatment. Claim (b): Complainant applied for the Supervisory Facilities Requirement Specialist, GS-1601- 13, position. He stated that he was the only applicant who made the certificate of referral for the position, but he was not offered the “temporary” position. He stated that the position was closed and re-announced as a permanent position so that more applicants could apply. Subsequently, Complainant was not selected, and the Selectee became Complainant’s Supervisor. Complainant stated that he was more qualified than the Selectee because, for the previous eight (8) years, he was responsible for planning, programming, managing, executing assigned programs, he functioned as the funding manager for all projects, and he was the “go to” person for customers who had questions or problems. The Agency stated that there was a Selecting Official and a four-member panel involved in this selection. The Agency stated that the vacancy was for a permanent position, not temporary. Six (6) applicants were considered for the position, including Complainant. Each applicant was scored, and the top four applicants had telephonic interviews. Complainant was one of the four top applicants and was interviewed. The answers to the interview questions were scored. The Selectee was the applicant with the highest score. Complainant’s score “fell outside one standard deviation from the highest score, and was eliminated.” 0120170973 3 One panel member stated that Complainant had a good technical background, but lacked experience in other areas that were rated. He also stated that during the interview, Complainant was “weak” in his knowledge of processes and guidance. The Agency denied that Complainant’s protected categories were factors in his non-selection. In rebuttal, Complainant stated that race was a factor because the Selectee was “pre-selected because he previously worked for one of the (selectors) who was a younger male.” Claim (c): Complainant was not selected for the Base Operations Support/Facility Services Contract Management Program Manager, GS-1101-13, position. He stated that he was referred for the position, but was not interviewed. Complainant stated that a female Acquisition Intern who had just graduated and did not have extensive knowledge of facilities was selected. The Agency stated that Complainant was not one of the top three scoring applicants and therefore was not interviewed. Complainant scored 23 out of 48 and ranked 6th out of the eight (8) candidates. The Agency stated that Complainant “lacked directly-related specialized experience” and that was a deciding factor in their decision. The Agency denied that Complainant’s protected categories were factors in his non-selection. Complainant’s rebuttal consisted of his belief that he was more qualified based on his twenty-five (25) years of service, and that the Selectee was young and “did not have extensive knowledge of facilities.” 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. In accordance with Complainant’s request, 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 The parties did not submit statements on appeal. ANALYSIS AND FINDINGS 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 0120170973 4 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”). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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. 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. 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant asserts that he was subjected to disparate treatment. Assuming, arguendo, that he established a prima facie case of discrimination as to all of his bases, we find that the Agency has provided legitimate, non-discriminatory reasons for its actions. Finding that the Agency provided legitimate, nondiscriminatory reasons for its action, we turn to Complainant to establish that the Agency’s reasons for its actions were pretext for discrimination. Upon review, we find that Complainant’s did not demonstrate that the legitimate, non- discriminatory reasons provided by the Agency were pretext for discrimination. Complainant’s rebuttal is based solely on his views and opinions. He did not provide evidence in support of his views and opinions. With respect to Complainant’s contention that his years of service made him more qualified for the positions at issue in claims (b) and (c), we note that we have repeatedly held that mere years of service, or length of service, does not necessarily make an individual more qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither does years of service automatically make an individual more qualified. Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19, 1991). The Commission will not substitute our judgment for the judgment of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate, unless other facts suggest that proscribed considerations entered into the decision-making process. See Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6. 1998). Moreover, Complainant argued that pre-selection played a role in the Agency’s decisions, the Commission notes that even if preselection occurred, it would not be unlawful unless Complainant can show that the preselection was driven by discriminatory animus. See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does not establish discrimination when it is based on the qualifications of the selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). 0120170973 5 Finally, Complainant did not request a hearing; therefore, we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing. We can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that the Agency’s conduct was based on discriminatory animus. Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision. 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. 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. 0120170973 6 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 December 4, 2018 Date Copy with citationCopy as parenthetical citation