Darrell C.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionApr 25, 20180120160610 (E.E.O.C. Apr. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrell C.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120160610 Hearing No. 480-2012-00755X Agency No. DON-11-62473-03755 DECISION On November 30, 2015, 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 October 23, 2015, 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. 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 Pipefitter, WG- 4204-10, for the Naval Facilities Engineering Command Southwest (NAVFAC SW) in the Utilities Department at the Miramar base in San Diego, California. On November 8, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) when he was denied the opportunity to fairly compete for the position of Work Leader, internal certificate number SW1-5309-10-PAO83180-C-MM.2 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. 2Complainant raises both a disparate treatment and a disparate impact theory of discrimination. 0120160610 2 After 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 13, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 24, 2015. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. AJ’S UNDISPUTED FACTS The AJ summarized the following undisputed facts in her decision. The Utilities Department in which Complainant worked employed approximately eleven employees, with one Lead Man.3 The then-current Lead Man (LM) (Black) held the position until sometime in 2011 when he vacated this position. At that time, the selecting official who was responsible to fill this vacancy (SO) (Caucasian) sent an email to the Utilities Department employees, inviting interested candidates to submit their resumes to him. Eleven employees, including Complainant, submitted their resumes to SO. The customary method of applying for an open position was to apply either through the USAJOBS website or the Civilian Hiring and Recruitment Tool (CHART). It is also undisputed that Complainant had applied for past positions using USAJOBS or CHART. In this case, Complainant did not apply on USAJOBS or CHART. A Human Resources Specialist (HR) (Hispanic), was responsible for compiling the list of applications for Team Lead, reviewing the applications to ensure that each candidate met the minimum prerequisites, and issuing an Internal Certificate which contained a list of the qualified candidates. HR reviewed the applications only of those who applied through USAJOBS or CHART. The Internal Certificate contained the names of eight candidates (five Caucasian and three Asian). Complainant was not on the Internal Certificate. The Internal Certificate was the only source from which a selection could be made for the Lead Man vacancy. Prior to the Human Resources Department issuing the Internal Certificate on which the eligible candidates’ names were listed, SO convened an interview panel and interviewed all eleven candidates who had submitted resumes in response to his email. Complainant was one of the eleven candidates interviewed by the panel. The interview panel consisted of the outgoing Lead Man (LM), the supervisor to whom the Lead Man would report (S1), and SO. SO was present at the interviews but did not prepare or ask any questions. Rather, LM and S1 prepared their own interview questions, and then asked the same questions of each candidate. SO was present at the interviews to serve as a tiebreaker if the panel disagreed on the selection recommendation. 3 The Work Leader position at issue herein is more commonly referred to as the Lead Man position. 0120160610 3 HR was not aware that SO had conducted interviews prior to the Internal Certificate being issued. Interviewing candidates before a Certificate was issued was not the normal hiring process used by the Agency. According to SO, it was customary for him to interview all candidates. He did so to ensure that “no one was left behind in the process” and to give “all employees the ability to interview.” SO also asserted that he interviews candidates before the Internal Certificate is issued so that he can “streamline” the selection process. SO further asserted that he cannot, however, select someone who is not ultimately on the certified list of candidates. Complainant stated that of the eleven candidates interviewed by SO, approximately six or seven were Black. Both LM and S1 recommended the same candidate for selection (SE) (Caucasian). SE was ultimately selected for the Lead Man position. The reasons provided for the selection decision were that SE was the most qualified, based on a review of his job experience, formal training, resume, and interview answers. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. 0120160610 4 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 103, 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). Disparate Impact To establish a prima facie case of disparate impact, Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion”). Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on Complainant to show that “the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern.” Dothard v, Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). Upon review of the record, we agree with the AJ’s analysis and conclusions reached with respect to Complainant’s disparate impact claim. The AJ viewed the record in the light most favorable to Complainant and concluded that he failed to present sufficient evidence to establish a prima facie case of disparate impact. Specifically, the AJ concluded that Complainant failed to establish that SO’s actions in interviewing all candidates prior to the creation of the Internal 0120160610 5 Certificate comprised an Agency policy, practice, or procedure. Rather, the undisputed record established that SO (a GS-13 Mechanical/Civil Utilities Product Line Team Leader for NAVFAC SW) deviated from the Agency’s standard operating procedure when he solicited resumes and interviewed candidates apart from the formal hiring process. The AJ concluded that the fact that SO stated that he has always done this was insufficient to transform his personal practice into an Agency policy, practice, or procedure, as it was not known or condoned by the Human Resources department or other official Agency personnel. The AJ also noted in her decision that the record evidence did not reveal a significant statistical disparity and noted that Complainant concedes this fact. The record shows that during the relevant time, the Utilities Department had a total of 117 employees, 16 of whom were Hispanic (13.6%), 65 of whom were Caucasian (55.5%), 19 of whom were African-American (16.2%), 16 of whom were Asian or Pacific Islander (13.6%), and one of whom was Native American (.8%). The record also shows that that there were only five supervisory positions in the Utilities group, three of which were held by Caucasian employees (60%), one of which was held by an African- American employee (20%), and one of which was held by an Asian or Pacific Islander employee (20%). Additionally, there were eight Work Leader positions. One of the Work Leaders was African-American (12.5%), two of the Work Leaders were Asian or Pacific Islander (25%), and five of the Work Leaders were Caucasian (62%). Thus, the percentage of African-American Supervisors (20%) is greater than the overall number of African-American employees (16.2%) and the percentage of African-American Work Leaders (12.5%) is only slightly less than the overall number of African-American employees (16.2%). As such, there is no indication of a significantly discriminatory Supervisor or Work Leader hiring pattern that disparately impacts African-American Utilities Department employees. However, the AJ concluded that even if SO’s personal practice was liberally construed as an Agency policy or practice, and even if Complainant could demonstrate a statistical disparity in hiring African-Americans for Team Leads, he had not presented evidence to show that any such disparity was linked to SO’s practice (i.e., there is no evidence to show that African-American candidates would more likely be misled by SO’s practice into not applying through USAJOBS or CHART than Caucasian or Asian employees). The AJ further noted that Complainant had previously applied for jobs through USAJOBS or CHART, and understood this to be the normal practice in applying for jobs. For these reasons, we agree with the AJ’s conclusion that Complainant has not presented evidence to raise a genuine issue of material fact that an Agency policy, practice or procedure had a disparate impact on African-American employees. Disparate Treatment Claim 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 0120160610 6 of discrimination. Furnco Constr. 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, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record, we agree with the AJ’s findings and conclusions with respect to the disparate treatment claim. The record establishes that the Agency articulated, a legitimate, non- discriminatory reason for not selecting Complainant for the Lead Man position (i.e., Complainant’s failure to formally apply for the position through USAJOBS or CHART resulted in his name not being placed on the Internal Certificate for consideration).4 We agree with the AJ’s finding that Complainant failed to present sufficient evidence of pretext. Complainant attempted to establish pretext by asserting that SO’s email to the potential applicants was misleading, giving the impression that submitting a resume to SO was all that was required. Complainant argued that SO’s email did not notify the potential applicants of having to go through USAJOBs or CHART, which was, in fact, the only means to make it on the Internal Certificate. Complainant further asserted that this misleading information was sent to weed out African-American candidates. The AJ concluded that the record was devoid of evidence to support this assertion and noted that the email was sent to all employees in the unit. Moreover, the record is devoid of evidence that any Agency official provided Caucasian and Asian candidates more information than Black candidates concerning their need to apply through USAJOBS or CHART, and Complainant has not proffered facts to suggest that such evidence exists. Accordingly, as the AJ correctly concluded, even if SO’s methods created an incorrect perception about the application process, all applicants were equally disadvantaged. Complainant also argued that pretext should be found because there were no African-American candidates on the Internal Certificate, thereby demonstrating that the Agency sought to fill the position with a non-Black candidate. We agree with the AJ in finding this argument insufficient to raise a genuine issue of material fact or law to demonstrate pretext because Complainant fails to provide evidence to show that other African-American candidates submitted their applications through USAJOBS or CHART and were found to have met the qualifications to be listed on the Internal Certificate. As the AJ noted, in this regard it was HR, not SO, who determined which of the applicants who had applied through USAJOBS or CHART met the qualifications to be 4 The record shows that Complainant assumed incorrectly that it was sufficient to submit his resume directly to SO to be considered for the position. However, only those candidates whose names appeared on the Internal Certificate after submitting their formal applications through USAJOBS or CHART were eligible for hire as the Lead Man. 0120160610 7 placed on the Internal Certificate.5 In addition, the AJ noted that the record was devoid of evidence of similarly situated applicants being treated more favorably than Complainant (i.e., there is no evidence that any non-Black candidate who gave their resumes to SO but also failed to apply on USAJOBS or CHART made it to the Internal Certificate). We further find that there is insufficient evidence of pretext as we find the record devoid of evidence that any of the responsible management officials held discriminatory animus toward African-Americans. Moreover, while it not necessary to determine if Complainant would have been selected had he applied through USAJOBS or CHART, we agree with the AJ that Complainant failed to establish that his qualifications were plainly superior to SE. Rather, the evidence in the record established that LM and S1 ranked Complainant second to last among all the applicants and both agreed that Complainant’s personality was not ideal for a Lead Man position. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action which adopts the AJ’s finding that Complainant failed to present sufficient evidence to warrant a hearing or prove his claims as alleged. 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), 5 The AJ further noted that since Complainant did not apply through USAJOBS or CHART, an analysis of whether HR harbored discriminatory animus with respect to his decision as to which applicants were found qualified was unnecessary because it is irrelevant to this claim. 0120160610 8 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. 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. 0120160610 9 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 25, 2018 Date Copy with citationCopy as parenthetical citation