Herb L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181830 (E.E.O.C. Sep. 4, 2019)

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

Herb L.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120181830
Hearing No. 570-2016-00092X
Agency No. DIA-2015-00033

DECISION

On May 11, 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
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., 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the Equal Employment Opportunity Commission’s Administrative
Judge erred by issuing a decision without a hearing that found that Complainant did not
demonstrate that he was subjected to discrimination when he was not selected for an interview for
the Chief Financial Officer position.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Chief, Internal
Controls and Financial Policy, GG-15, Supervisory Accountant at the Agency’s Office of the Chief
Financial Officer in Washington, D.C. Complainant and thirteen other applicants applied for the
position of Chief Financial Officer. A panel of five was convened to rank the applicants.
Complainant was rated as “Not Qualified” by three of the five panel members, and the other two
panel members rated him as “Acceptable.” Based on the ratings, an overall score was compiled
for each applicant. Complainant received a score of 2. The other applicants received the following
scores, 11.5, 10.5, 10, 10, 10, 9, 8, 7.5, 4.5, 4, 2 and 0. The panel recommended that the five
applicants with the highest compiled scores should be interviewed. Complainant was notified that
he was not selected for an interview on January 5, 2015.

Complainant indicated that he was better qualified than those selected for an interview. He also
maintained that the Chief of Staff was named as a responsible management official in another EEO
complaint that he had filed, and, was friendly with some of the members of the panel. As such, he
believed that reprisal was the reason that he was not selected.

On February 12, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Asian), color (Not Specified), disability (walks
with a cane), age (63), and reprisal for prior protected EEO activity when, on January 5, 2015, he
was notified that interviewees had been selected for the Chief Financial Officer position and that
he was not selected for an interview as a result of his standing up to the Chief of Staff, when he
filed a prior case against her.

At the conclusion of 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 Administrative Judge.
Complainant timely requested a hearing. Over Complainant's objections, the Administrative Judge
(AJ) assigned to the case granted the Agency’s August 12, 2016, motion for a decision without a
hearing and issued a decision without a hearing on February 21, 2018. Specifically, the AJ found
that there were no material facts at issue in this case.

The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its
actions, namely, that Complainant was not invited for an interview because he was not one of the
five highest ranked candidates. To show pretext, Complainant argued that there were deficiencies
in the application process of two of the applicants who were selected for interviews. The AJ found
that even if this was so, there was no indication of a discriminatory motive. Complainant also
argued that he was retaliated against because the Chief of Staff, who was a named RMO in another
EEO complaint that he filed, was friendly with some of the members on the panel. The AJ
discounted this argument, and, indicated that based on case law this type of conclusory assertion
was not enough. Finally, Complainant argued that he was better qualified than those selected for
an interview and therefore, he should have been selected. Again, the AJ concluded that based on
the evidence, Complainant was rated as a 2, while those selected for an interview were rated from
9 to 11.5.
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The AJ found that absent any evidence of discriminatory animus, Complainant’s conclusory
statements about him being better qualified where just conclusory. The AJ found that Complainant
did not demonstrate that he was better qualified than those selected for an interview. Therefore,
the AJ determined that Complainant did not demonstrate that the Agency’s reasons were pretext
for discrimination or that discriminatory animus was involved in the selection.

When the Agency failed to issue its final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the Chief of Staff’s credibility was
called into question in another one of his EEO complaints. According to Complainant, she was
found to have subjected him to direct discrimination when she reassigned him to a position with
less responsibility and visibility because he spoke with an Asian accent. Complainant maintains
that her actions in this case must be considered suspect. Complainant argues that summary
judgement is not appropriate when there is a question as to the credibility of a witness. He contends
that at the time that he was preparing his response to the Agency’s summary judgment motion, he
was not aware that the Chief of Staff was found not credible in the other EEO complaint. Finally,
Complainant contends that the Agency did not present a legitimate business reason for why it
accepted incomplete application packages from two of the white applicants.

In response, the Agency contends, among other things, that Complainant had the opportunity to
depose the Chief of Staff in discovery if he thought she was important in this matter. The Agency
contends that Complainant has not identified any statements or actions made by the Chief of Staff
in this case to show that she influenced anyone on the panel. The Agency also indicates that to the
extent there were irregularities in the applications of two applicants there was no evidence that it
was based on discrimination or retaliation. The Agency argues that Complainant failed to show
that anyone on the panel held any form of discriminatory or retaliatory animus toward him.

Finally, the Agency argued that Complainant failed to understand that out of the 13 applicants for
the position, he received the second lowest score. As such, there were ten applicants rated higher
than him, and had the applications that he found to be incomplete were not considered, he still
would not have garnered an interview. The Agency contends that choosing the best applicants
was the business reason for its selection.

ANALYSIS AND FINDINGS

We must first determine whether the AJ appropriately issued the decision without a hearing. The
Commission’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.
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The U.S. Supreme Court 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). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for 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
“material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant, in pertinent
part, argued that the Chief of Staff knew some of the panel members, and as a result he was
subjected to reprisal. He also maintained that there were applications that were not fully completed
but received higher scores than his fully completed application. Ultimately, as will be discussed
further below, we find that theses assertions do not undermined the AJ’s determination that there
are no genuine issues of material fact or credibility that merited a hearing. Therefore, we find that
the AJ’s issuance of a decision without a hearing was appropriate.

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that assuming, arguendo, Complainant established a prima
facie case of discrimination as to all of his bases, the Agency articulated a legitimate,
nondiscriminatory reasons for its actions, namely, that only the five highest ranked applicants were
invited for an interview. Complainant was rated at the bottom of the group of the thirteen
applicants, with a ranking of 2 so he was not invited for an interview.
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Moreover, we find that Complainant did not demonstrate that the Agency’s reason for his not
getting invited for an interview was a pretext for discrimination. First, other than Complainant’s
conclusory statement that the Chief of Staff was friendly with some of the panel members, he
provided no evidence that raised an inference that she affected the panel’s ratings of any of the
applicants. We also find that while there were deficiencies with two of the applications, i.e., a
response to a question was missed or not completely provided, these two applicants still were
ranked higher than Complainant. Even if these two applicants were removed from consideration,
Complainant’s rating of 2 would not have earned an interview because he still would not have
been in the top five. Complainant simply has not demonstrated that discriminatory animus was
involved with the ratings.2

Finally, Complainant argued that he was better qualified for the position than the individuals
selected for an interview. In a nonselection case like this, however, one way that a complainant
can show pretext is by establishing that the alleged disparities in qualifications between them and
the selectee are “of such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper
v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct.
1195, 1197-1198 (2006). Given the disparity between Complainant’s rating and those of the top
five applicants, we find that Complainant did not establish that his qualifications were so superior
that discrimination was the more likely motive here. Absent proof of a demonstrably
discriminatory motive, the EEOC will not second-guess an agency’s personnel decision. See
Burdine, 450 U.S. at 259.
CONCLUSION

Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not
establish that he was subjected to discrimination as alleged.

2 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing,
a complainant’s opposition must consist of more than mere unsupported allegations or denials and
must be supported by affidavits or other competent evidence setting forth specific facts showing
that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

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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.

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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

September 4, 2019
Date