Don S.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Apr 11, 2019

0120180539 (E.E.O.C. Apr. 11, 2019)

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

Don S.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120180539

Agency No. 201727355MARAD01

DECISION

On November 20, 2017, 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
November 9, 2017 final decision 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

Complainant worked as a Chief, Human Performance Branch - Leadership Academy, GS-14, at a
Department of Defense agency located in Atlanta, Georgia. At the time of events giving rise to
this complaint, Complainant was also an applicant for a position with the Department of
Transportation (hereinafter referred to as “the Agency”).

On April 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male), disability (Hypertension and General Anxiety Disorder -
10-point disabled veteran), and age (62) when, on March 15, 2017, it failed to select him for the
position of Commandant of Midshipmen, GS-15, United States Merchant Marine Academy

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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(USMMA), advertised under Vacancy Announcement No. MARAD.MMA-2017-0016. The
Agency accepted Complainant’s claim for investigation.

Evidence Developed During the Investigation

During the EEO investigation, Complainant stated that he has service-connected medical
conditions (Hypertension and General Anxiety Disorder), he is on medication for both, and the
conditions do not limit any major life activity. Complainant stated that his conditions are
permanent.

Complainant alleged that the Agency added specialized language to the Commandant
announcement to favor a “pre-selected” candidate for the position. Complainant stated that the
Agency disqualified his application although he was on the staff and faculty of an accredited and
world-renown officer development institution that provides training to over 22,000 officers from
over 100 countries per year – the United States Army Command and General Staff College.
Complainant also stated that he was the Program Manager for the Saudi Arabian National Guard
Command and was an Adjunct Faculty Member at the University of Maryland. Further,
Complainant stated that he applied and was referred for a similar vacancy in 2015, but the 2015
announcement did not include the requirement “providing leadership, supervision, safety and
discipline to students transitioning from high school to college.” Complainant alleged that other
Commandant positions do not require the “transitioning” skill and those other positions are not
under “accreditation warning” like USMMA.

A Lead Human Resources Specialist (HR1) stated that she conducted a re-review2 of
Complainant’s application and it was “disqualified for lack of experience.” HR1 stated,
“[Complainant’s] resume . . . did not support experience in military development, higher affairs
and student development, while providing leadership, supervision, safety and discipline to
students transitioning from high school to college.” HR1 noted that vacancy announcements are
created based on what a hiring manager seeks in a candidate. HR1 stated that Human Resources
did not refer applications that did not satisfy requested qualifications. HR1 stated that vacancy
announcements can be similar with a few adjustments and that different individuals review the
applications each time. HR1 stated that position qualifications could have changed or perhaps
Complainant should not have been referred as qualified for the 2015 vacancy. She noted that he
was referred but not selected for the 2015 position he cited. HR1 stated that there are others who
Human Resources did not refer.

In pertinent part, the investigative record contains the documents that follow:

2 We note that the Human Resources Specialist who conducted the initial review of
Complainant’s application for Announcement MARAD.MMA-2017-0016 was a contractor and
is no longer with the Agency. A re-review was conducted after Complainant appealed his non-
referral for the announcement.
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▪ The resume of the selected candidate (C1) (male, 54), indicating that he
had a “10-point [veterans] preference based on a compensable service
connected disability of 30% or more.” Also, the resume shows that C1
was Acting Commandant of Midshipmen at USMMA, New York from
October 2016 to March 2017 and Deputy Commandant of Midshipmen at
USMMA from September to October 2016.

▪ Vacancy Announcement for Commandant of Midshipmen, GS-0301-15,
USMMA, Kings Point, New York. Relevantly, the vacancy summary
stated:

Highly desirable: A professional possessing an advanced degree in
a field related to leadership development, experience in university
student affairs administration, military experience in officer
development, experience in staff or faculty as a federal service
academy or state or private university with a regimental system.

▪ Application materials for fourteen candidates who were referred to the
selecting official for Announcement MARAD.MMA-2017-0016,
including C1.

Post-Investigation

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
or an immediate final agency decision. On September 14, 2017, Complainant requested an
immediate final decision.

In accordance with 29 C.F.R. § 1614.110(b), on November 9, 2017, the Agency issued a final
decision. The decision concluded that Complainant failed to prove that the Agency subjected
him to discriminatory motives as alleged. The Agency stated that Complainant showed that he
has a plethora of experience, however, he did not possess the exact qualifications that the
Agency was seeking with the 2017 vacancy announcement. The decision concluded that even if
Complainant could show that he should have been referred for consideration, he did not establish
that his qualifications were “plainly superior” to the selectee, C1.

The instant appeal from Complainant followed. On appeal, Complainant again alleged
preselection of C1 and expressed concern about the short period of time in which the Agency
hired and then promoted C1.

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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, at Chapter 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”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

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).

Even assuming arguendo that Complainant established a prima facie case of discrimination, the
record shows that the Agency articulated legitimate, nondiscriminatory reasons for the non-
selection. A Human Resources Representative, HR1, stated that Complainant was not referred to
the selecting official because his application did not show “experience in military development,
higher affairs and student development, while providing leadership, supervision, safety and
discipline to students transitioning from high school to college.” HR1 stated that vacancy
announcements can be similar, but a hiring manager may specify a skill for a particular position.
HR1 noted that different reviewers assess applications for each announcement.
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HR1 stated that position qualifications could have changed between the 2015 and 2017
Commandant announcements for which Complainant applied and that Complainant was referred
but not selected for the 2015 position he cited. The resume of the selectee, C1, showed that he
served as Acting Commandant of Midshipmen at the instant facility - USMMA, New York -
from October 2016 to March 2017 and as Deputy Commandant of Midshipmen there from
September to October 2016.

We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext
designed to conceal discriminatory animus toward Complainant's protected classes. He failed to
show that his qualifications were plainly superior to those of the selectee. It is not the intent of
the Commission to substitute its judgment for that of the Agency where discriminatory motives
have not been shown. The Agency has broad discretion to set policies to carry out personnel
decisions and should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Burdine, 450 U.S. at 259; Allen v. Dep't of the Navy, EEOC Appeal No.
01A52639 (Aug. 10, 2005)(citing Stiles v. Dep't of Transportation, EEOC Request No.
05910577 (Jun. 27, 1991) (in the absence of plainly superior qualifications belonging to
complainant to compel a finding of pretext, the Commission will not second guess the agency's
personnel decisions). An Agency has even greater discretion in choosing management level
employees. Allen, EEOC Appeal No. 01A52639 (citing Wrenn v. Gould, 808 F.2d 493, 502 (6th
Cir. 1987)).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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).
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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. The
court has the sole discretion to grant or deny these types of requests.
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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 11, 2019
Date