Bertrand R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 4, 2019

2019000983 (E.E.O.C. Jun. 4, 2019)

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

Bertrand R.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019000983

Hearing No. 520-2016-00428X

Agency No. DON-15-40085-02663

DECISION

On November 27, 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
May 17, 2018, final order concerning an equal employment opportunity (EEO) complaint claiming
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.

BACKGROUND

During the period at issue, Complainant worked as a mechanic, WG-11, at the Agency’s Public
Works Division, Portsmouth Naval Shipyard in Kittery, Maine.

On June 29, 2018, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on age (61) and in reprisal for EEO protected activity
when, on July 13, 2015, Complainant became aware that he had not been selected for a WS-4701-
10, Maintenance Supervisor position advertised under vacancy announcement #SE54701-10-
1382197LG082950.

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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After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On March 29, 2018, the Agency filed a motion for a
decision without a hearing. Complainant submitted documents opposing the Agency motion on
April 18, 2015 and on April 27, 2018. On May 3, 2018, the Agency responded to Complainant’s
opposition to decision without a hearing. The AJ issued a decision by summary judgment in favor
of the Agency on May 4, 201, finding no discrimination had been established. The Agency
subsequently issued a final order adopting the AJ’s finding.

The instant appeal followed. 2 On appeal, Complainant challenges the Agency’s redaction of the
questions it had posed during interviews for the vacancy at issue. Complainant argues the
Agency’s doing so suggested that interview questions and evaluation criteria were inconsistent
with the supervisory mechanic position description. Complainant further contends that the
selection official was also his third-line supervisor, and had openly expressed animus against
promoting him. Specifically, Complainant describes an antagonistic 2010 discussion between
union members and management where the selection official had stated words to the effect that
none the mechanics present, including Complainant, would be promoted. According to
Complainant, the Agency’s supervisory hiring was rumored to be biased toward younger veterans
while ignoring applicants with proven experience. Complainant states the Agency had forced him
to retire effective December 31, 2018, because management frustrated his promotion efforts over
thirteen years even though he had been certified eligible for all but one of 23 promotion vacancies.

ANALYSIS AND FINDINGS

EEOC’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 has 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). A “genuine issue of fact” is one that a reasonable judge
could find in favor for the non-moving party. A “material” fact could potentially affect the outcome
of a case. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846
F.2d 103, 105 (1st Cir. 1988). Here, the AJ reasonably concluded that there were no issues of that
merited a hearing. Plausibly, the AJ found the record adequate for issuing his decision without a
hearing. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).

2 Complainant requested EEOC “extend this case” based on his accusation that, in order to delay
his appeal, the Agency deliberately forwarded notice of the final decision to his former address.
In turn, the Agency responds that Complainant did not update his address. We consider
Complainant’s appeal timely under these circumstances. We therefore decline to further address
the Agency’s argument on the timeliness of the instant appeal.

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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

The AJ correctly analyzed Complainant’s discrimination claim in terms of disparate treatment
discrimination under the three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant successfully established his prima facie case in that the Agency had
promoted another mechanic who was age 38 and no clear record of EEO activity whereas
Complainant was 61 when he was not selected. See Furnco Constr. Co. v. Waters, 438 U.S. 567,
576 (1978).

Next, the AJ concluded the Agency had articulated legitimate and nondiscriminatory reasons for
its promotion action. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Specifically, the AJ found the Agency had appropriately emphasized the selectee’s quality of
experience over Complainant’s length of experience.

Finally, Complainant was afforded an opportunity to prove by preponderance of the evidence that
the Agency’s proffered reasons were not its true reasons. See Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 144 (2000). To carry this burden of persuasion, Complainant needed to
prove the Agency’s proffered explanations were unworthy of credence. See Burdine at 256. In
non-selection cases, Complainant had to establish the Agency’s stated reasons its decision were
merely pretexts for age discrimination or retaliation. See Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). The most effective means for Complainant to prevail
was by showing his qualifications were “plainly superior” to the those of the selectee. See Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

This record did not corroborate Complainant’s statement that the Agency was predetermined to
hire a younger veteran for supervisory mechanic. To the contrary, even after quarrelling with
Complainant’s group of union mechanics, management temporarily made him acting supervisory
mechanic and rewarded him based on his performance while occupying that position. In spite of
this opportunity, Complainant did not demonstrate that he was plainly superior to the selectee in
terms of quality of experience. Furthermore, a member of the evaluation team testified
Complainant had interviewed poorly, and that he had scored lowest among interviewees.
Additionally, the same witness confirmed the evaluators had unanimously recommended the
ultimate selectee with the highest score, as well as better supervisor experience comparable to
Complainant.

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Finally, unless a selection was based upon unlawful criteria, this Commission provides agencies
greater discretion in choosing among qualified candidates for supervisory positions, such the one
at issue in the instant complaint. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Moreover, we have consistently held that one applicant’s greater length of experience does
automatically mean he is better qualified over another. See Macready v. Dep’t of Justice, EEOC
Appeal No. 01991433 (Apr. 4, 2002).

CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision by summary judgment
concluding no discrimination was established.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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

June 4, 2019
Date