Herb L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.Download PDFEqual Employment Opportunity CommissionSep 4, 20190120181830 (E.E.O.C. Sep. 4, 2019) Copy Citation 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. 0120181830 2 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. 0120181830 3 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. 0120181830 4 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. 0120181830 5 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. 0120181830 6 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. 0120181830 7 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 Copy with citationCopy as parenthetical citation