Adolfo O.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2019004057 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adolfo O.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2019004057 Hearing No. 430-2016-00399X Agency No. DON-16-3258A-00352 DECISION 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 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 a Quality Assurance Specialist, GS-1910-11, at the Agency’s facility in Portsmouth, Virginia. On January 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (52) when on September 14, 2015, he was not selected for the position of Equipment Specialist, GS-1670-11/12, advertised under vacancy announcement number SE51670-12-1406861LG060822. 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. 2019004057 2 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 (AJ). Complainant requested a hearing. The AJ found that, after viewing the evidence in a light most favorable to Complainant, a decision without a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a decision without a hearing on May 2, 2019, finding no discrimination. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). On appeal, Complainant reiterates his contention that he was subjected to unlawful age and race discrimination, and argues that the AJ erred in issuing a decision without a hearing as there are issues of material fact in dispute. ANALYSIS AND FINDINGS As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of an administrative proceeding, an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). After a careful review of the record, the Commission finds that a decision without a hearing was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2019004057 3 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 Construction 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community 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 Products, Inc., 530 U.S. 133 (2000). Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima facie case of race and age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows that Complainant was one of six applicants interviewed for the position at issue out of the twenty-three applicants found to be qualified. The interview panel consisted of three panel members, including the selecting official, and all six interviewees were asked the same, predominantly scenario-based questions. The panel members scored the answers of each interviewee independently, and the scores were then tallied, with the overall score for each interviewee based solely on their responses to the interview questions. Following the interviews, the highest scoring and second highest scoring interviewees were selected for the position at issue. Complainant received the lowest cumulative score out of the six candidates interviewed. In support of the interview scores, the panel members stated that Complainant’s responses were shallow and narrowly focused on equipment issues, and he “did not ask probing questions.” In contrast, the selectees were found to have responses that showed an attention to detail, and “demonstrated the ability to get past the equipment aspect of the position and address other significant areas.” The contemporaneous notes of the panel members support these statements as to the relative interview performances of Complainant and the two selectees. We concur with the AJ’s finding that Complainant failed to show that these articulated reasons for his nonselection were a pretext for unlawful age or race discrimination. CONCLUSION The Agency’s final action finding no discrimination is AFFIRMED. 2019004057 4 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. 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. 2019004057 5 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 September 23, 2020 Date