Alfonzo H.,1 Complainant,v.Ryan M. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120181266 (E.E.O.C. Aug. 8, 2019)

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

Alfonzo H.,1
Complainant,

v.

Ryan M. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120181266

Hearing No. 550-2017-00460-X

Agency No. ARLEWIS16AUG04794

DECISION

On March 2, 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 26, 2018, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Lead Firefighter (Captain) GS-0081-08 at Emergency Services at the Joint Base Lewis-
McChord, Washington.

On December 12, 2016, Complainant filed an EEO complaint, as amended, alleging that the
Agency discriminated against him based on his age (51) and reprisal for prior protected EEO
activity under the ADEA and Title VII when:

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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1. On June 29, 2016, he was informed that he was not selected for one of two slots for the
position of Supervisory Firefighter (Station Captain), GS-0081-09, Joint Base Lewis –
McChord, Washington, vacancy announcement # WTEU162986331665575;

2. On unspecified dates he previously was not selected for promotion for unspecified
vacancies;

3. On unspecified dates he was subjected to unspecified sexual harassment by an unspecified
person;

4. The Agency failed to properly process the instant case at the informal pre-complaint stage
when it refused to mutually schedule alternative dispute resolution he requested and did
not provide his designated non-attorney representative copies of all EEO correspondence;
and

5. He was issued a proposed letter of suspension dated June 15, 2017 (which was rescinded
on June 20, 2017) for improper and unacceptable conduct in the workplace for shouting a
remark the Agency labeled as anti-Semitic on April 1, 2017, and on June 16, 2017, he was
placed on indefinite administrative leave;

The Agency accepted issues 1 and 5 for investigation. It dismissed the remaining issues.
Complainant raised issue 2 via his August 4, 2016 email initiating contact with the EEO office. He
raised issues 3 and 4 when he filed his EEO complaint. By letter to Complainant and his
representative dated January 24, 2017, the Agency’s EEO office requested Complainant clarify
issue 2 by identifying dates, jobs, vacancy announcements and so forth and issue 3 by describing
any incidents of sexual harassment, including dates and identity of the perpetrator. Complainant
did not respond. On March 16, 2017, the Agency dismissed issues 2 and 3 because there was
insufficient information to adjudicate them, and dismissed issue 4 pursuant to 29 C.F.R. §
1614.107(a)(8) for regarding dissatisfaction with the EEO process.

Thereafter, the Agency investigated issues 1 and 5, creating a report of investigation (ROI).
Complainant requested a hearing. Thereafter, the AJ issued a Notice of Intent that he was
considering issuing a decision without a hearing, with an opportunity to respond. Therein, the AJ
wrote that the issues 1 – 4 were before him. Regarding issue 1, the AJ found that it appeared the
following was undisputed. Complainant, along with more than 20 other candidates, was referred
to a panel for interview and evaluation, and all were asked the same job related interview questions.
Interview scores were based on the candidates’ knowledge, skill, ability, leadership potential, and
confidence. Panelists did not share score sheets. Based on score totals, Complainant ranked 12th
out of all candidates interviewed and evaluated.

In his response to the AJ’s notice of intent, Complainant raised the following matters. The EEO
investigation was inadequate. His oppositional and participation activity reprisal basis and claim
that he was surveilled by Agency management after he initiated EEO counseling (on August 4,
2016) were not investigated. The names in applications in the record were redacted, and the
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Agency did not provide documents related to his suspension. The “pattern aspect” of his case was
not investigated, and key witnesses did not provide statements. The AJ did not issue a standard
Acknowledgment and Order with discovery rights, and he was not given any opportunity to engage
in discovery. He has a right to discovery, and without discovery he can’t gather information needed
to develop the record, identify potential witnesses, and impeach witnesses via oral depositions.
There was a genuine issue of material fact, i.e., the Assistant Fire Chief stated there were
intentional inconsistencies with scoring resumes and interviews.

Thereafter, the AJ issued a decision on summary judgment without a hearing finding no
discrimination. The AJ found that the record was adequately developed for summary disposition,
that there were no genuine issues of material fact, nor questions of credibility. Regarding issue 2,
the AJ recounted the facts in his Notice of Intent, and found that the selecting official chose the
two candidates (Selectee 1 - age 36, no EEO activity; Selectee 2 – age 44) with the highest scores,
and Complainant ranked 12th. The AJ found that other than his own opinion and speculation, there
was no evidence indicating that Complainant’s qualifications and experience were superior to
Selectees 1 and 2, or that his age or prior EEO activity had anything to do with the selection
decision.

The AJ found that the Agency, for the reasons it gave, properly dismissed issues 2 and 3. Regarding
issue 4, the AJ found that there was no evidence that the EEO process was improper or caused an
unjust result.

The Agency’s final order adopted the AJ’s decision. The instant appeal followed.

The Agency filed a brief in opposition to Complainant’s appeal on April 27, 2018, which
Complainant asks be stricken for untimeliness. Citing 29 C.F.R. § 1614.403(f), Complainant
argues that since he did not file an appeal brief in addition to argument he made to the AJ in his
response to the notice of intent (which he did not refer to in his appeal), the Agency had 60 days
from receipt of his March 2, 2018 appeal to file its opposition appellate brief and serve a copy
thereon to him, and applying the five day presumption in 29 C.F.R. § 1614.604, the Agency
received his appeal on March 7, 2018. He argues that accordingly, the Agency’s service to his
non-attorney representative on May 10, 2018, as evidenced by a postmarked envelope he submits,
was untimely.

In opposition to Complainant’s appeal, the Agency argues that its final order should be affirmed.

ANALYSIS AND FINDINGS

As an initial matter, we are not persuaded that the Agency’s opposition brief is untimely. First,
Complainant’s appeal did not include a certificate of mailing that a copy thereof was mailed to the
Agency to an identified address on a certain date (in fact, he did not indicate anywhere in his appeal
that it was even copied to the Agency). Second, when a complainant has a non-attorney
representative, the Agency satisfies its duty by serving the complainant himself. Cf. 29 C.F.R. §
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1614.402(b). Complainant does not assert that he was not served a copy of the Agency’s appellate
opposition brief, nor indicate the service date to him.

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Issuing a decision without holding a hearing is not appropriate for a case that can only be resolved
by weighing conflicting evidence. If the non-moving party “has not had the opportunity to discover
information that is essential to his opposition,” then a decision without a hearing is inappropriate.
Anderson, 477 U.S. at 250, at footnote 5. The AJ must enable the non-moving party to engage in
sufficient discovery to respond to a motion for a decision without a hearing. After receiving an
opposition to a motion for a decision without a hearing, an AJ may order discovery as necessary.
29 C.F.R. § 1614.109(g)(2).

We agree with the AJ that the record is adequately developed. The EEO investigator asked all
witnesses who gave declarations if they were aware of Complainant’s protected EEO activity, and
as part of the question explained this included participation and opposition activity. This
undermines Complainant’s claim that reprisal was not investigated. The Agency did not investigate
Complainant’s surveillance claim because he did not include it in his EEO complaint nor advise it
was missing after receiving the letter setting forth the claims to be investigated. Contrary to
Complainant’s assertion, the Agency provided documents related to his proposed suspension, i.e.,
the Notice of Proposal and a letter on the administrative leave. Complainant submitted the notice
rescinding the proposal. On key witnesses who did not submit statements, Complainant did not
explain in his response to the AJ’s Notice of Intent why they were key nor what relevant
information they could have provided.

The AJ did not abuse his discretion in denying Complainant the opportunity to engage in discovery
because Complainant had the opportunity to oppose the AJ’s notice of intent to issue a decision
without a hearing (equivalent to motion for a decision without a hearing), and Complainant did
not identify information he sought to discover that was essential to supporting his opposition to a
decision without a hearing.
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We disagree with Complainant’s argument in his response to the AJ’s Notice of Intent that the
Assistant Fire Chief created a genuine issue of material fact by stating there were intentional
inconsistencies with scoring resumes and interviews. A reading of the Assistant Fire Chief’s
declaration, a former union official, reveals that he was referring to scorings in prior selections, he
did not identify the inconsistencies, he stated he was not involved in any way in the selection
process at issue and acknowledged he had no information thereon.

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

The record reflects that there were actually two panels of three in this case, i.e., one to score
resumes, and one to score interviews. Each panel had three members, with no overlapping
members. Each panel member independently scored, and did not share their scores with other panel
members. Names of applicants were redacted from the resumes, and all the resume panel members
stated that when they scored the resumes they did not know the identity of the applicant they were
scoring. One resume panel member scored Complainant 3rd place, another 8th place, and another
tied for 19th place. On his interview, one interview panel member rated Complainant tied for 1st
place, another tied for 3rd place, and another tied for 8th place. The latter panel member (age 33,
involved in unidentified EEO activity) first learned Complainant had EEO activity when
Complainant told him on June 16, 2017, long after the selection process was complete. ROI,
Section 7.4.e., at 3, Bates No. 300. While this panel member did not know Complainant’s exact
age, he knew Complainant.

The Battalion Chief, GS-0081-10 (age 52, no EEO activity), who was the selecting official, stated
in making the selection, he followed a written “Hiring Process” procedure document, which he
submitted. He stated that in accordance with this procedure, he selected the two candidates with
the highest total scores. He stated that he was not aware of any prior protected EEO activity by
Complainant nor knew his age, albeit he knew Complainant.

The Agency explained that it chose the selectees because it believed they were the best qualified.
While Complainant disagrees with this, he has not shown that the Agency’s explanation was
pretext to mask discrimination. We note that the panel who scored resumes did not know the
identities of who they were scoring.

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We find that the AJ properly dismissed issues 2 – 4 for the reasons done so by the Agency and the
AJ.

The AJ did not address issue 5, and Complainant does not argue on appeal that the AJ missed this
issue. For this reason, we will not address issue 5. But we take administrative notice that on June
4, 2018, the Merit Systems Protection Board (MSPB) issued an initial decision which became final
regarding Complainant’s removal after the Agency rescinded his proposed suspension.
Complainant was removed for the charge in his proposed suspension, which the Agency
determined was further supported by his repeating the remark found to be anti-Semitic when on
June 15, 2017, when his first line supervisor met him to provide the notice of proposed suspension.
Complainant was placed on indefinite administrative leave for repeating the remark the Agency
found was anti-Semitic. ROI, Section 7.4.b., at 6, Bates No. 276. We take administrative notice
that the MSPB found both remarks were anti-Semitic and constituted conduct unbecoming of a
Federal employee, and also found Complainant was not removed based on reprisal for prior EEO
activity. The MSPB gave Complainant the right to file a request with the EEOC review its decision,
which he did not exercise. Nevertheless, the MSPB reversed the removal because the Agency
violated Complainant’s due process guarantee to notice. Identified name of complainant vs. Army,
MSPB No. SF-0752-18-0039-I-1 (Jun. 4, 2018).

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.
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
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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. 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

August 8, 2019
Date