Timothy M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 25, 2018

0120181149 (E.E.O.C. May. 25, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Timothy M.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120181149

Hearing No. 430-2015-00444X

Agency No. DON-15-40085-0199

DECISION

On February 20, 2018, 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 19, 2018, 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 worked as an Interdisciplinary
Engineer/Construction Manager, GS-0801/0803-12, at the Agency’s Naval Facilities
Engineering Command, Mid Atlantic (NAVFAC MIDLANT), Public Works Department (PWD)
Norfolk Facilities Engineering & Acquisition Division (FEAD) in Norfolk, Virginia.

From July 23, 2014, to July 28, 2014, the Agency issued an internal Solicitation of Interest,
Number JRA-14-861450 CI, for two Interdisciplinary Engineer/Architect positions. One
position was located at the Norfolk Naval Shipyard in Portsmouth, Virginia.

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.
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The other position was located at the Naval Station Norfolk in Norfolk, Virginia. The two
positions fell under the Capital Improvements Business Line, Construction Product Line,
NAVFAC MIDLANT. The duties for the positions included: providing expert construction
engineering and construction management services to internal and external NAVFAC
MIDLANT clients; and providing oversight, coordination, guidance and other construction
support services needed to assist execution teams accomplish facility and utility construction.
The solicitation of interest also stated “[a]s a subject matter expert in construction engineering,
the incumbent normally addresses the most complex, highest risk, and highest value post award
construction engineering matters.”

Complainant applied for the Norfolk position. Complainant made the Certificate of Eligible
applicants list. The Construction Product Line Coordinator was the Selecting Official for both
positions. The Selecting Official based his selections for the two positions on recommendations
from the PWD LEADs that corresponded to the positions. Person A, Supervisory General
Engineer, Construction Director, NAVFAC MIDLANT, PWD Norfolk FEAD was
Complainant’s second level supervisor. Person A provided his recommendation to the Selecting
Official for the Norfolk Position on behalf of the PWD Norfolk FEAD. Person A made his
recommendation by reviewing the resumes against seven factors: (1) experience in complex,
critical, high value, and high risk projects; (2) experience on project schedules; (3)
leadership/mentoring; (4) involvement with NAVFAC construction initiatives; (5) computer
skills; (6) “red zone” experience; and (7) design-build/design bid-build experience. Person A
recommended Selectee 1 for the Norfolk position. The Selecting Official chose Selectee 1 for
the Norfolk position.

Person B was a Supervisory General Engineer, Head, Project Management and Engineering,
NAVFAC MIDLANT, PWD, Norfolk, FEAD. Person B was Complainant’s third level
supervisor. Person B was not involved in the selection process for the Norfolk Position.

On February 5, 2018, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to harassment. Specifically, Complainant alleged
that:

a. He was discriminated against and subject to harassment (non-sexual/hostile work
environment) based on his age (52) and race (African-American) by Person A and
Person B when on September 8, 2014, he was not selected for the position of
Interdisciplinary Engineer/Architect, GS-0801/0808-13, posted under
Management Identification of Candidate (MIC) Number JRA-864105-CI; and
b. He was subjected to harassment (non-sexual/hostile work environment) based on
race (African American) between March 2001 and September 8, 2014, by Person
A (second level supervisor) and Person B (third level supervisor) when:
1. On February 7, 2002, he was issued a 2001 Annual Evaluation containing
negative comments by, then first level Supervisor (S1);
2. On October 27, 2003, Person B upon Complainant’s refusal to relocate,
berated him, stating “I don’t want you.”
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3. On August 11, 2004, Person A issued him a Letter of Reprimand; and
4. On September 30, 2008, and on December 22, 2009, Person A issued his
Annual Appraisals containing negative comments.

On April 28, 2015, the Agency issued a Notice of Partial Dismissal accepting claims (a) and
(b)(2) for further processing. The Agency dismissed claims (b)(1), (3), and (4) for untimely EEO
Counselor contact of separate actionable claims. The Agency noted these were all “discrete”
acts that are time-barred incidences that were to be challenged within 45 calendar days of when
the occurred. The Agency noted Complainant initially contacted the EEO Office on October 30,
2014, which is between six and 13-plus years after the earliest and latest events respectively.
Complainant was advised that the decision partially dismissing his complaint was reviewable by
an EEOC Administrative Judge (AJ) if a hearing was requested on the remainder of the
complaint.

At the conclusion of the investigation on the accepted issues, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC AJ. Complainant requested a hearing. On December 17, 2015, an Order on Initial
Conference, Deadlines and Record Completion was issued. The Order noted the “Agency
dismissed several claims for untimely EEO Contact. Complainant did not challenge the
dismissals.” On April 8, 2016, the Agency filed a motion for summary judgment and decision
without a hearing. Complainant did not respond to the Agency’s motion for summary judgment.
The AJ adopted the Agency’s statement of undisputed facts and issued a decision without a
hearing finding no discrimination on January 5, 2018.

In his decision, the AJ found Complainant established a prima facie case of discrimination based
on his nonselection for the position at issue, and noted the Agency conceded the same. The AJ
noted the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s
nonselection. The Agency stated it used several selection factors to evaluate candidates, which
included: (1) experience on complex, critical, high value, and high risk projects; (2) experience
on project schedules; (3) leadership/mentoring experience; (4) involvement with NAVFAC
construction initiatives; (5) computer skills; (6) “Red Zone” experience;2 and (7) Design-
Build/Design Bid-Build experience. The AJ noted that Person A evaluated the candidates’
resumes against the seven factors, and provided recommendations to the Selecting Official.
Person A recommended the Selectee because his resume addressed more of the selection factors
than Complainant’s resume.

The AJ noted Complainant asserted several arguments for pretext. First, he contended that the
Agency used selection factors that were not identified in the Solicitation of Interest for the
position.

2 The AJ noted that the Agency explained “Red Zone” is a NAVFAC constructive initiative. It
focuses on “planning and executing the actions required to render facilities complete and usable
for timely turnover to the Client . . . [and] supplements aspects of facility turnover that are not
included in the construction contract.”
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However, the AJ noted the selection factors were addressed within the Position Description
(dated March 2014), which predated the Solicitation of Interest. The AJ noted this was
important because it showed the Agency had a legitimate basis for the selection factors, since the
Solicitation of Interest itself does not reference all the factors. Further, the AJ noted that when
asked to explain why he believed he should have been selected for the position, Complainant
asserted that he had “the most experience, the most education, the most credentials, the most
training, and the most skill set.” The AJ stated that while Complainant had many years of
experience, upon the AJ’s independent review of both resumes, it appeared the successful
candidate better addressed the essential functions of the position in his resume by explicitly
referencing his experience with regard to the selection factors. In contrast, the AJ stated
Complainant did not specifically reference his experience on project schedules (factor 2), did not
list any mentorship experience (factor 3), did not specifically reference NAVFAC construction
initiatives (factor 4), did not reference computer skills (factor 5), and did not explicitly reference
“Red Zone” experience (factor 6). The AJ noted Complainant contended that he had more
education and training than the Selectee, but he stated this was not true. The AJ stated both
Complainant and the Selectee had Masters’ degrees. The AJ noted that according to their
resumes, Complainant only had a DAWIA Level II certification, while the Selectee had the
required Level III certification. Thus, the AJ determined Complainant did not meet his burden to
show pretext.

The AJ found Complainant’s hostile work environment claim failed because it consisted of
Person B’s single comment (“I don’t want you”), which had no apparent relation to
Complainant’s race. Further, the AJ found the comment was in no way severe or pervasive
because it occurred in 2003 (11 years prior to Complainant’s formal complaint). The AJ found
no reasonable person could conclude that this single incident unreasonably interfered with
Complainant’s work environment or created an intimidating, hostile, or offensive work
environment.3

The Agency subsequently issued a final order on January 19, 2018. 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.

On appeal, Complainant states the Solicitation of Interest for the position did not address any of
the selection factors that Person A used for the recommendation. Complainant argues the fact
that a candidate addressed each of the unnamed factors points to Person A guiding the Selectee
with the factors used. Complainant also notes that the Selectee has worked for MIDLANT for
four or five years and obtained a training certificate (FE level III) one level higher than he has
(FE Level II) when he has been here more than twelve years. Complainant claims this is because
Person A controls the training and has denied his training requests over the years.

3 The AJ noted that Complainant undercut his racial harassment claim by stating in his complaint
that his relationship with Person B began to deteriorate in 2001 or 2002, once he complained to
Person B and other supervisors about another employee’s performance. The AJ noted that
Complainant stated Person B then “turned on” him.
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Complainant also states generally that Person A has disrespected, harassed, and not selected him
for temporary supervisory positions in the office. Complainant claims his resume was not
addressed properly and that the seven factors should have been listed if that was the selection
criteria. Complainant states that although the projects listed on the Selectee’s resume appear to
have a higher dollar value, this does not mean they were successful. Complainant states Person
A, Person B, and the Selectee are all graduates of the Virginia Military Institute and are all White
while he is Black. He also notes the Agency failed to recognize his leadership position – as a
track coach at Hampton University.

Regarding issue (2), Complainant states that the comment by Person B in October 2003 is only
identified in the early stages of his claim. Complainant states that when he did not get selected
for the GS-13 position, it became clear to him that he has been working in a hostile environment
over the last 12 years. He notes that in executing his duties as a Construction Manager in 2001,
he found problems with one of the inspectors/construction representatives (Person C).
Complainant states meetings were held with management several times at his request concerning
Person C. Complainant states he was trying the help Person C but it resulted in an opportunity
for Person B to take discriminatory actions against him. Complainant claims Person B and
Person A have created a hostile environment for him. He states there are so many events that he
cannot list them all right now but he will provide some and then provide more later.
Complainant states on August 11, 2004, Person A gave him a letter of reprimand. He also notes
that in 2008 and 2009 he rebutted each of his evaluations.

In response to Complainant’s appeal, the Agency notes that after receiving a hearing request
from Complainant, the AJ scheduled an Initial Conference for December 17, 2015. The Agency
states during the Initial Conference, the parties discussed and agreed upon the claims before the
Commission.

The Agency contends the AJ correctly found that Complainant established a prima facie case of
nonselection. The Agency states the AJ also properly found the Agency articulated legitimate,
nondiscriminatory reasons for Complainant’s nonselection. The Agency states Complainant
failed to establish the Agency’s actions were a pretext for discrimination. The Agency notes
there is no proof or substantiation for Complainant’s claim that he did not obtain a Level III
certification because Person A controls the training and denied Complainant’s training requests
over the years.

The Agency notes that Person B stated he never said, “I don’t want you” to Complainant.
However, the Agency noted that assuming arguendo that Person B did make this statement,
Complainant still cannot prevail on his claim because Person B’s alleged statement did not and
cannot establish a hostile work environment.

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ANALYSIS AND FINDINGS

There is no indication that Complainant raised the dismissed claims with the AJ. Furthermore,
we find that the Agency properly dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2).

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 (EEO MD-110), at Chap. 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 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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are
no disputes of material fact. Regarding, Complainant’s contention that his hostile work
environment claim contained more issues than identified by the Agency, we note that
Complainant did not challenge the issues raised in his complaint while his complaint was
pending before the AJ. Thus, we find Complainant is precluded from raising additional issues on
appeal.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she 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 Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

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In the present case, Complainant established a prima facie case of discrimination regarding his
nonselection claim. The Agency articulated legitimate, nondiscriminatory reasons for selecting
the Selectee - the Selectee more thoroughly addressed the seven relevant selection factors.
Regarding Complainant’s contention that the Solicitation of Interest did not contain the seven
selection factors, the record reveals that the selection factors were addressed in the position
description for the position at issue, which predated the Solicitation of Interest. Moreover,
despite Complainant’s unsupported allegation, there is no evidence that Person A “guided” the
Selectee in the selection process. While Complainant asserted that the number of years he
worked at his job entitled him to be selected, the Commission has held that an applicant is not
entitled to a position merely because he has more seniority. The Selecting Official can consider
other job-related factors as well. The record reveals that in addition to addressing the essential
functions of his position better in his resume, the Selectee had the required DAWAI Level III
certification, while Complainant only had DAWAI Level II certification. Despite Complainant’s
claim that he did not obtain a Level III certification because Person A controlled the training and
denied his training requests over the years, we find that Complainant provided no substantiation
for this claim. Upon review, Complainant failed to show that his qualifications were plainly
superior to those of the Selectee. Moreover, Complainant failed to show the Agency’s actions
were based on discriminatory animus.

Regarding his claim of a hostile work environment, assuming the comment was made, we find
Complainant’s claim consists of a single statement attributed to Person B. We note the comment
was made in 2003, and that no reasonable person can conclude that this single incident
unreasonably interfered with Complainant’s work environment or created an intimidating,
hostile, or offensive work environment. Moreover, we note there is no indication the statement
was related to Complainant’s race.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

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.
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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. 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.
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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

May 25, 2018
Date