0120152211
07-14-2017
Dudley H.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dudley H.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152211
Agency No. 146592302426
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's May 4, 2015 final decision 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 Machinist, WG-3414-10, in the Manufacturing Machine Shop for the Industrial Facilities and Equipment Management Division of the Industrial Execution Department at the Fleet Readiness Center East ("FRC-E") in Cherry Point, North Carolina.
On July 16, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of age (43) when:2
1. On May 14, 2014, he was not selected for the permanent position of Toolmaker (WG-3415-13), posted under Certificate Number JB14ADJ14040S0 ("Position 1"); and
2. On May 22, 2014, he was not selected for the permanent position of Toolmaker Leader, (WG-3416-11), posted under Certificate Number JB14AJD14487S0 ("Position 2").
Complainant has 25 years of time in trade ("TIT") as a machinist at the FRC-E, having worked for 22 years in the Power Plant Machine Shop and over 3 years in the Manufacturing Machine Shop. According to Complainant, the Manufacturing Machine Shop was divided into "Young" machinists with under 10 years TIT and "Older" machinists aged 40 and older with over 10 years TIT. Complainant alleges that the Toolmaker Supervisor (age 48, "S1"), spent significantly more time with the "young" machinists and provided them with more opportunities than the "Older" machinists. Complainant alleges that the Agency, specifically S1, implemented a selection process for internal hiring opportunities that favors "young" machinists.
The Director of the Industrial Plant Services Division, Complainant's third line supervisor (age 50, "S3"), was the selecting official for the positions at issue in the instant complaint. S3 relied on subject matter experts ("SMEs"), to review and grade the candidates' resumes. S3 assigned S1 as an SME to score the resumes for both positions. S3 assigned a Machinist Supervisor (age 46) as the other SME for Position 1 and a Plaint Maintenance Manager (age 53) as the other SME for Position 2. The SMEs recount being "handed a stack of resumes" and independently grading them based on specific metrics provided by S3. Although both positions were internal hires, the SMEs, state that they did not know the identity or age of the candidates whose resumes they reviewed because the names on the resumes had been redacted. We note that Complainant and the five selectees all named S1 on their resumes as their first line supervisor.
Complainant was among 26 eligible applicants to Position 1 (4 vacancies), and 14 eligible applicants to Position 2 (1 vacancy). The selection process for Position 1 was based on resume score (50%), as well a written and practical exam (25% each). A resume score of 2.0 or higher was required in order to advance to the practical exam requirement. With a score of 1.7688, Complainant was not among the 12 candidates that took the practical exam. Ultimately, two Machinists, WG-3414-10 (ages 35 and 29), a Machinist, WG-3414-11 (age 49), and a Toolmaker Machinist, WG-3416-11 (age 53) were selected to fill the four Position 1 vacancies. As for Position 2, the selection was based entirely on resume scores. Complainant's resume ranked sixth among the Position 2 candidates with a score of 2.3813. The Position 2 selectee, a Machinist, WG-3414-10 (age 31), scored 3.725.
Complainant argues that the resume scores did not reflect his qualifications and were based on an "arbitrary" application of the scoring metrics, that favored younger employees.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant did not respond, so the Agency issued a final decision on the matter, finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.3
ANALYSIS
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
It is well established that an Agency, as the employer, has broad discretion to determine how best to manage its operations, and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. Where, as here, the alleged discriminatory action is nonselection, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, an Agency may choose among qualified candidates based on its discretion, provided that the decision is not based on unlawful criteria. See Burdine at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). We note that an Agency has even greater discretion when filling management level or specialized positions, such as those at issue in the instant complaint. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Ultimately, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered into the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048.
The Agency cites Complainant's resume scores as the legitimate nondiscriminatory reason for his nonselection(s). Complainant argues that the scores were pretext for discrimination because his qualifications are "plainly superior" to those of the selectees, citing his WG-13 Toolmaker and WG-14 Patternmaker certifications, and alleging that the Agency intentionally lowered his education score by leaving his apprenticeship (a requirement for both positions) out of its calculations. Complainant also alleged that the scoring process was pretext for discrimination because it placed an "arbitrary" emphasis on computer skills, which, Complainant alleges, resulted in higher scores for younger employees as they tended to have more computer training.
On appeal, Complainant has not shown that his qualifications were "plainly superior" to those of the selectees, who, based on the record, are all well qualified for their positions. Further, we find no evidence that the Agency intentionally failed to consider his apprenticeship, which, if included, would not have resulted in his selection for either position. Also, the record reveals that Complainant received strong scores on his education, sometimes higher than the selectees, even without the apprenticeship. Contrary to his allegation, the SMEs did take Complainant's long TIT into account, providing him sixth strong scores for the knowledge category.
As for the remaining three scoring categories, the SMEs explained that Complainant scored lower in the other categories due to the "textbook-like" style of his resume. Specifically, Complainant's resume lacked individualized examples that would allow the SMEs to gage his broader knowledge and "ingenuity," in accordance with the scoring instructions. Conversely, the resumes of the selectees were more tailored to the scoring sheets because they contained examples of specific projects and descriptions of how they were completed from "start to finish." For example, the Position 1 Selectee's resume demonstrated his ingenuity by describing start to finish how he successfully repaired a machine in one of the Agency's other departments by making a replacement for a discontinued part, and did so without blueprints using traditional and computer technology. While it is likely Complainant can (and has) completed specific projects like those described in the selectees' resumes, this is not reflected in his resume, so he received lower scores. We do not find the Agency's preference for resumes written in a style that provides examples of the candidates' personal experience to be "arbitrary" or pretext.
The Agency's legitimate nondiscriminatory reason for giving weight to a candidate's relevant computer skills, is that they are necessary to perform both positions. The vacancy announcements and position descriptions for Positions 1 and 2 provide that the ability to operate "without more than normal supervision" Computerized Numerical Control ("CNC" or "NC") machine centers and specialized equipment such as NC and CNC lathes is required. Question 2 on the Position 1 scoring sheet asked SMEs to assess the candidates'' "ability to set up complex toolmaking operations.. with examples given of jobs requiring design work, ingenuity, prototype... [such as the use of] FARO [high-precision 3D measurement software] and CMM [coordinate measuring machine, which can be either computerized or manual] reverse engineering methods." Even if, as Complainant alleges, the Agency's scoring overemphasizes the importance of computerized equipment to the positions, such an emphasis is within the Agency's purview. Moreover, we find no evidence that the scoring process favors younger employees, and note that Complainant does not dispute that he has access to computer training.
Having carefully reviewed the record, as well as the parties' arguments on appeal, we conclude that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision to dismiss Complainant's complaint.
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. 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
July 14, 2017
__________________
Date
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.
2 In his Formal Complainant and on appeal, Complainant also alleged discrimination on the basis of disability (Major Depressive Disorder, Recurrent, Severe Attention Deficit Hyperactivity Disorder, Predominantly Inattentive Type) in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., but withdrew this allegation in his July 6, 2015 brief, "Complainant's Statement in Support of Appeal."
3 We exercise our discretion and decline to grant the Agency's August 3, 2015 "Motion to Strike Complainant's Statement in Support of Appeal as Untimely."
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