Tyree B.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0120160304 (E.E.O.C. Mar. 7, 2018)

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

Tyree B.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Appeal No. 0120160304

Agency No. DHANCR-14-0027

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the August 14, 2015 final
Agency decision (FAD) 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. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Operations Section
Deputy Chief (Supervisory Facilities Management Specialist), GS-12, at the Agency’s Fort
Belvoir Community Hospital (FBCH) in Fort Belvoir, Virginia. On January 22, 2014, the
Agency announced an internal vacancy announcement for Lead Engineering Technician under
Job Opportunity No. 1035220. Complainant submitted his resume and was interviewed by a
selection panel. Complainant claimed that during the interview, the panel asked him many
questions about construction. Complainant admitted that he did not have a construction
background. Additionally, Complainant alleged that the selecting official, his first-level
supervisor (S1), intentionally asked him in-depth follow-up questions for him to elaborate in his

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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responses to the interview questions, which Complainant believed to be unfair and unnecessary
because SO was very familiar with his capabilities. Following resume reviews and interviews,
the selection panel independently scored the candidates. Ultimately, SO selected the Selectee,
who the panel rated as the highest-ranked candidate.

Complainant met with S1 soon after the selection for the Lead Engineering Technician position.
During this meeting, Complainant claimed that S1 informed him that his position was no longer
needed. On August 12, 2014, Complainant was issued a Specific Reduction-in-Force (RIF)
Notice of Change to Lower Grade downgrading him from his GS-12 Supervisory Facility
Management Specialist position to a GS-9 Facilities Operations Specialist position effective
November 16, 2014. Complainant alleged that his position was the only one abolished and that
other employees were upgraded from GS-9 to GS-11. Additionally, Complainant was moved to
the Dilorenzo TRICARE Clinic at the Pentagon.

On October 24, 2014, S1 issued Complainant a Letter of Instruction/Warning. Therein, S1 stated
that Complainant had demonstrated a pattern of behavior that was creating a disruption in the
work center. In particular, S1 stated that Complainant had incorrectly advised employees that he
was Operations Section Chief, assigned duties or tasks to employees who were not his direct
reports, and told employees to direct their leave requests to him after they had previously been
instructed to direct them to the Operations Section Chief.

On June 27, 2014 (and twice amended), Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of race (African-American), color (Black), age
(58), and in reprisal for prior protected EEO activity when:

1. On or about April 24, 2014, he was not selected for the position of Lead Engineer,
GS-0802-12, Job Announcement Number 1035220;

2. On or about August 12, 2014, he received a Change to Lower Grade letter using
Reduction in Force (RIF) procedures; and

3. On or about October 24, 2014, his first-level supervisor (S1) issued him a Letter
of Instruction/Warning.

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 EEOC
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), S1 explained that an assessment of the
inventory at FBCH, Walter Reed Medical Center, and Bethesda National Medical Center
determined that only one Supervisory Lead was needed at FBCH rather than two.
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As a result, management created a position description for the Lead Engineer position and issued
an internal announcement for the position. S1 affirmed that a four-person selection panel was
convened and all candidates were asked the same questions with panelists independently scoring
the candidates. At the conclusion of the process, the panel determined that the Selectee was the
best-qualified candidate. S1 stated that the Selectee’s responses were more in-depth than
Complainant’s, thereby demonstrating a higher level of knowledge. One panelist agreed that the
Selectee’s interview responses were better and more detailed than Complainant’s. Two
management officials noted that even if Complainant had been selected, Human Resources
would not have approved his selection because Complainant lacked the required engineering
degree and experience.

With respect to claim (2), S1 stated that the Agency’s Civilian Human Resources Agency
exercised their authority in the RIF matter and that Complainant was impacted since his previous
position was eliminated after the selection of the Selectee for the Lead Engineer supervisory
position. S1 noted that 40-50 other employees in the unit received the same RIF notice. The
FBCH Director affirmed that Complainant received the standard template RIF notice mailed to
numerous other employees. The Director confirmed that the RIF occurred following a
classification study of the needs, requirements, and positions of three military hospitals that were
merging at the time. The Director explained that all position descriptions were reviewed and
rewritten, which resulted in some of the position descriptions being graded up and about 33
position descriptions being lowered. The Director added that employees who received a lowered
position description maintained the same pay.

Finally, regarding claim (3), S1 asserted that he issued the Letter of Instruction and it was issued
as a corrective matter and not punitive. S1 affirmed that several co-workers had reported that
Complainant continued to represent to them that he maintained supervisory authority over them.
S1 stated that all supervisory authority had been vested with the Lead Engineer following his
selection to that position. S1 stressed that the letter was issued to clarify roles and
responsibilities. The Human Resources Specialist had recommended to S1 that he issue the letter
as a “stop gap” measure after several co-workers had reported a hostile work environment due to
tension between Complainant and the Lead Engineer where each was issuing different
instructions and duties to co-workers.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Selectee for the Lead Engineer position was less
qualified than him and had a prior social and private sector relationship with S1. Complainant
challenges the officials’ statements that he would not have been qualified for the position even if
he had been selected. Additionally, Complainant argues that S1 retaliated against him by
immediately subjected him to a RIF, downgrading him, and reassigning him to the Pentagon
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after he raised concerns about not being selected for the Lead Engineer position. Complainant
claims that he was still serving in a supervisory position when he was issued the Letter of
Instruction and no one had informed him that he was not to perform those duties. Complainant
believes that S1 coached the employees to complain against him. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish 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. Corp. 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,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, with regard to claim (1), S1
explained that following a position review at the hospitals at Fort Belvoir and Bethesda,
management concluded that only one supervisory lead engineer was needed to help distribute
work assignments and supervise the 11 employees. ROI, at 437. The Agency internally
announced the position and S1 assembled a selection panel to interview the five candidates. Id.
at 112, 438. S1 affirmed that the panelists scored the candidates’ resumes and interviews
independently and each rated the Selectee as the highest-ranked candidate. Id. at 438. S1 stated
that the Selectee was more detailed in his responses to the interview questions and actually had
to be stopped by going too far into his answers while Complainant did not provide the same
depth to his answers. Id. Another panelist confirmed that the Selectee performed better during
his interview than Complainant. Id. at 446. S1 added that the Selectee was far more experienced
in project management and quality assurance that Complainant. Id. at 438. After tallying all the
scores, S1 selected the Selectee because he was the highest-rated candidate. Id. The Supervisory
HR Specialist noted that even if Complainant had been selected, he would not have been
qualified for the position because his resume did not reflect the qualifications required for an
Engineering Tech position according to the Office of Personnel Management standards. Id. at
451.

As to claim (2), the Supervisory HR Specialist confirmed that Complainant’s position was
downgraded as a result of the classification study. ROI, at 451.
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The Supervisory HR Specialist noted that approximately 44 employees were similarly affected at
FBCH and the process was completed in a standard manner across the board. Id. at 451-52. The
Supervisory HR Specialist affirmed that Complainant was issued a RIF Letter changing him to a
lower grade because there was no other position for Complainant to fill except for a position in
the same series he was in at a lower grade at the Pentagon. Id. at 452. S1 noted that
Complainant kept the same pay indefinitely, was registered in the Priority Placement Program,
and would be eligible to be placed in a GS-12 position if one became available. Id.

Finally, with respect to claim (3), S1 confirmed that he issued Complainant the Letter of
Warning after he received complaints from multiple employees about Complainant’s behavior.
ROI, at 439. S1 stated that employees reported that Complainant indicated that he was in charge
of the Operations and Maintenance Section to lower level employees, but every organization
chart showed that he was second in charge. Id. S1 added that Complainant was not able to fix
technical problems whereas the Lead Engineering Technician could and S1 stated he could not
have someone in charge that could not handle or fix the problems. Id. In the letter, S1 instructed
Complainant to stop assigning duties or tasks to employees who were not his direct reports and
to stop directing employees to submit their leave requests to him when they had been advised
otherwise. Id. at 385. S1 noted in the letter that Complainant had been advised previously of his
job functions, but continued to demonstrate a disruptive pattern of behavior that was impacting
morale in the office. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. With respect to
his non-selection claim, one way Complainant can establish pretext is by showing that his
qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may
establish pretext as to his non-selection claim.

As Complainant chose to not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. In particular to his non-selection claim, Complainant failed to show that his
qualifications for the position at issue were plainly superior to those of the Selectee. In this case,
the Selectee had attributes that justified his selection, and the selecting official affirmed that he
believed the Selectee was better equipped to meet the Agency’s needs. In the absence of
evidence of unlawful discrimination, the Commission will not second guess the Agency’s
assessment of the candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at
259. Furthermore, to the extent Complainant claimed that the Selectee was preselected,
Complainant has not shown that any such preselection was motivated by discriminatory animus.
Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).

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At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that discriminatory or
retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a
result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of 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. 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.
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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

March 7, 2018
Date