Bart M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 24, 20190120180301 (E.E.O.C. Apr. 24, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120180301 Agency No. DON-17-47039-00265 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 20, 2017, finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contractor, Senior Analyst, C4 Capabilities and Requirements Support with the Office of the Chief of Naval Operations N2/N6FP1. On January 3, 2017, Complainant filed his complaint alleging discrimination based on race (White), sex (male), and age (over 40) when: (1) On September 28, 2016, he overheard Selecting Official (SO) and Panel Number 1 (PN1) discussing the preferred candidate selection prior to interviews being held; and 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. 0120180301 2 (2) On October 17, 2016, he was notified he was not selected for the GG-0343-14 Program Analyst position at the Naval Intelligence Command. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge. The Agency then issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. 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 (EEO MD-110), 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"). 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 or she 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 0120180301 3 After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the relevant time, Complainant was employed as a Contractor, Senior Analyst at the Agency. He applied for the Program Analyst position but was not selected. Regarding claim (1), Complainant indicated that on September 28, 2016, he heard PN1 say, “[Complainant] is the most qualified” and the SO replied, “but I want [an identified male employee (EE1) (not the selectee)].” The SO did not recall the conversation concerning the position at issue. PN1 noted that at that time, EE1 applied for two positions (the position at issue and “FP2”). PN1 indicated that shortly after reading the list of six names, including Complainant, for the position at issue that was referred by Human Resources office but before reviewing resumes, PN1 had a private conversation with the SO that based on just looking at the list of names and his working experience with them, Complainant would be the most qualified candidate. The SO responded that she hoped EE1 got FP2 position (not the position at issue) because he would be good for it. Complainant acknowledged that although the foregoing conversation raised concern because it was a prohibited personnel practice, he did not find it discriminatory. PN1 noted that his initial opinion of who was the “best qualified” candidate changed after the hiring selection process ran its course. Regarding claim (2), the SO indicated that she convened three interview panelists who reviewed resumes of six applicants whose names were referred by Human Resources office. The panel determined that all six candidates met the minimum requirements of the position and decided to interview all six. One candidate subsequently withdrew from consideration prior to her scheduled interview. Thus, the panel interviewed five candidates, including Complainant, asking the same five questions concerning: communications leadership, information warfare portfolio analyst, ship construction/ship change documents/SECNAV waivers, and intangibles. The possible highest total score was 210. Complainant scored 152 points. Two other candidates scored lower and another candidate scored 153 points. The panel stated that the selectee (younger female, Black) received the highest total score of 162 points and was the best candidate and the best fit for the position. The panel recommended the selectee for the position and the SO agreed. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to show that his qualifications for the position were plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). The record indicates that Complainant did not perform well during his interview (e.g., with open ended questions) and certainly not as well as the selectee performed during the interview, and that difference was the key in the selection decision. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. 0120180301 4 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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 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. 0120180301 5 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 April 24, 2019 Date Copy with citationCopy as parenthetical citation