Van P.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 9, 2016

0120150087 (E.E.O.C. Sep. 9, 2016)

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

Van P.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120150087

Hearing No. 480-2013-00616X

Agency No. 12-67400-02307

DECISION

On September 30, 2014, Complainant filed an appeal from the Agency’s September 25, 2014,
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. The Commission deems the appeal
timely and accepts it for de novo review. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Project Engineer for the Department of the Army. He applied for a
Supervisory Environmental Engineering position at the Marine Corps base in Okinawa, Japan,
but was notified on April 27, 2012, that although he was found qualified and referred to the
review panel for consideration, he was not selected. Investigative Report (IR) 129. On July
16, 2012, Complainant filed an EEO complaint in which he alleged that the Supervisory
Environmental Engineer who served as the selecting official (SO) and the Assistant Chief of
Staff who served as the approving official (AO) had discriminated against him on the bases of
national origin (East Indian), religion (Muslim), age (69), and in reprisal for EEO complaints

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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filed in 2009, 2010, and 2012, by not selecting him. IR 399. He subsequently amended his
complaint to include an allegation that these officials had again discriminated against him on
the above-referenced bases by noncompetitively reassigning three employees to various GS-12
and GS-13 science and engineering positions between March and November of 2012. IR 413.

Incident (1) – Nonselection: Nine individuals were found qualified and referred by a Human
Resources (HR) Specialist to a review panel consisting of three members. The SO, working
with the HR Specialist, had devised a single set of nine interview questions to be used by the
panelists. All candidates were asked the same questions. At the conclusion of the interviews,
the panelists ranked the top three as follows: the Selectee and the second-choice Candidate
each received a composite score of 86 while Complainant received a composite score of 82.
By consensus, the panel chose the Selectee and reported their choice to the SO, who
concurred. The AO formally approved the selection. IR 109-12, 119-21, 129-31, 138, 403,
426-27, 480.

Incident (2) – Noncompetitive Reassignments: Between March and November 2012, the AO
reassigned three internal employees to vacant physical scientists and engineering positions
without opening up those positions to competition. Effective March 25, 2012, Reassigned
Employee (RE) 1 was moved from a Civil Engineering position to a Physical Scientist
position. RE 1 was transferred again, effective July 1, 2012, to fill an open Pollution Control
Engineering vacancy. Effective August 27, 2012, the AO reassigned the second-choice
Candidate from the earlier selection process to a vacant GS-13 supervisory position. Effective
November 4, 2012, the AO reassigned another employee (RE 2) into a vacant GS-12
engineering position. IR 150-55, 168-69, 235-37, 247, 380, 430, 437.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
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.

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 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”).

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The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that either the SO or the AO was motivated
by unlawful considerations of his religion, national origin, age, or previous EEO activity in
connection with their decisions not to hire him as a Supervisory Engineer or to
noncompetitively reassign the Agency’s own employees. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove unlawful motivation by
presenting evidence tending to show that the reasons articulated by the SO and the AO in
support of their decisions were pretext, i.e., not the real reason but rather a cover for
discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993).
Pretext can be demonstrated by showing such weaknesses, implausibilities, 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. Opare-Addo v.
United States Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for
reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).

In nonselection cases, Complainant could demonstrate pretext by showing that his
qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dept.
of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of
pretext include discriminatory statements or past personal treatment attributable to those
responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected-group lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

Complainant averred that his qualifications were plainly superior to those of the selectee in that
he had more years of experience than the selectee. IR 404-06. Agencies have broad discretion
to choose among equally qualified candidates as long as the selection is not based on unlawful
considerations. Complainant v. Department of Homeland Security, EEOC Appeal No.
0120141478 (July 31, 2015). They may select candidates with fewer years of experience if
they believe that such candidates are best qualified to meet the needs of the organization. See
Complainant v. Department of Justice, EEOC Appeal No. 0120131151 (February 25, 2015).
They may even preselect a candidate as long as the preselection is not premised upon a
prohibited basis. See Complainant v. Department of Homeland Security, EEOC Appeal No.
0120132858 (March 9, 2015).

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In an email response to Complainant’s inquiry as to why he was not selected, the SO informed
Complainant that his responses in the areas of live ranges and cultural resources management
were scored lower than those of the selectees. IR 140. Complainant responded that those
factors were not central to the selection process, and that the questions were developed to
custom-fit the preferred candidate. IR 407. The SO and the three panelists, however, all
averred that live range and cultural experience were central to the position and were central to
the selection process, and that the Selectee and the second-choice Candidate had significantly
more experience than Complainant in that regard. IR 428, 431, 469, 471, 478-79, 482, 487,
489. Aside from his own assertions, Complainant has not submitted any sworn statements
from other witnesses or documents that contradict the explanation provided by the AO, the SO,
or any of the panelists, or which call their veracity into question. We therefore find, as did the
Agency, that Complainant has failed to establish the existence of an unlawful discriminatory or
retaliatory motive on the part of the AO, the SO, or any of the panelists in connection with his
nonselection for the position of Supervisory Environmental Engineer in April 2012.

Turning now to the second incident, Complainant averred that the SO gave RE 1, RE 2, and
the second-choice Candidate from the earlier selection process preferential treatment in not
requiring them to compete for their positions. IR 415-20. The SO averred that in each case he
checked with the HR Specialist to make sure that the actions were legal and proper, and in
each case the HR Specialist assured him that they were. The HR Specialist corroborated the
statements that the SO made in his affidavit. IR 177, 179, 247, 250, 265, 431, 437-40, 441-
43, 502-07. As with the nonselection, Complainant has not presented any evidence of
unlawful motivation on the part of the SO, the AO, or the HR Specialist other than assertions
he made in his affidavit.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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. 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
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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

September 9, 2016
Date