Ralph E.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.Download PDFEqual Employment Opportunity CommissionJun 26, 20180120162653 (E.E.O.C. Jun. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ralph E.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120162653 Hearing No. 570-2015-00812X Agency No. DIA-2014-00040 DECISION On August 17, 2016, 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 July 14, 2016, 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Technical Information Specialist, Series 1412, GG-12, at the Agency’s Facilities and Services, Mission Services, in Washington, D.C. 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. 0120162653 2 On July 29, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his race (Caucasian), disability (autoimmune disorder, neuropathy in both feet and arthritis in both arms and shoulders) and age (53) when: 1. On April 3, 2014, Complainant was notified that he was not selected for a GG-1412- 13 Technical Information Specialist position in the IIR Data Management & Dissemination Services Section. 2. On multiple occasions between March 28, 2014 - April 24, 2014, Complainant’s Supervisor was unresponsive to his emails and meeting requests. Complainant subsequently amended his complaint and added the following claims: 3. On August 21, 2014, the Supervisory Program Manager discriminated against him on the bases of his race, disability, and reprisal (current EEO complaint) when it did not select him for a GG-0340-12/13 Program Manager position within the IIR Data Management & Dissemination Services Section. 4. Whether Complainant was discriminated against on the bases of his sex (male) and religion (Catholic) when on October 2, 2014, he was discussing an issue with a coworker in his cubical space and his Supervisor approached him and made religious- related comments, “Are either of you Catholic?” and “Do you know who the patron saint of hopeless causes is?” Complainant stated that these comments caused him to feel uncomfortable. In subsequent amendments to the complaint, the Agency accepted the following claims: 5. Whether Complainant was discriminated against on the bases of disability and reprisal when on or about October 22, 2014, the Supervisory Technical Program Specialist assigned him a new program objective that required him to walk from his office space to the mail room twice a day for mail pick-up, retrieve documents from the scan center, and take burn tubs to the loading dock. Complainant further claimed that in March 2012, he provided the Agency and his supervisors with medical documentation that stated his disability limits his ability to walk long distances. 6. Whether Complainant was discriminated against on the basis of reprisal for his prior EEO activity (instant complaint) when Complainant’s Supervisor created a schedule that placed Complainant as an anticipated alternate for a GG-13 grade level employee during the 2014-15 calendar year. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. 0120162653 3 Prior to the withdrawal of his hearing request, the AJ issued a Case Management Order wherein the AJ noted that Complainant clarified that he had withdrawn claims (2) and (5). The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. 2 With regard to claim (1), Complainant stated that he was interviewed for the position at issue by the Technical Program Support Manager. Complainant claimed that he was better qualified than the selectee because he had ten years more experience in the job series, had four years of college and had done a rotation from 2009-2012 on the Afghanistan/Pakistan Task Force. Complainant further asserted that had been issued multiple awards and had higher performance ratings than the selectee. The Technical Program Support Manager stated that he recommended the selectee to the selecting official, who was his Supervisor. According to the Technical Program Support Manager, the mandatory factors for the position were experience with the Joint Distribution System, performing open source research, performing metrics queries, reports, and collaborating with others both within and outside the work unit. The Technical Program Support Manager maintained that he was unaware of the age, disability status, or race of both Complainant and the selectee, the only two candidates who met the minimal qualified mandatory factors. He stated that the specific reasons for his selection choice were that the selectee explained the various modules within the Joint Distribution System as well as the Statements of Intelligence Interest, produced weekly metrics reports and knew how to update distribution lists. He further stated that Complainant stated that he touched the Joint Distribution System but that he did not work with the Statements of Intelligence Interest portion, and lacked direct, hands-on experience. The Technical Program Support Manager asserted that a college degree was not required for the position, nor did he consider awards or performance ratings. The selecting official explained that she chose the selectee based on his resume and interview write-up. According to the selecting official, Complainant demonstrated very good skills as a Technical Information Specialist, but that he had not worked in all areas of the Joint Distribution System such as the Statement Intelligent Interest and the Compartmented Address Book. The selecting official asserted that the selectee had current working knowledge of all areas of the Joint Distribution System and was able to articulate the purpose of the Joint Distribution System and each component, and he provided examples of his performance when creating, modifying, or suspending accounts. As for claim (3), Complainant was not selected for the Program Manager position. The selectee was African-American. The Technical Program Support Manager stated that he recommended the selectee and another candidate (Caucasian) for the position after reviewing resumes and conducting interviews. 2 The Agency addressed claim (2) in its decision even though Complainant had previously withdrawn the claim. Since this matter is no longer at issue, we shall not discuss the Agency’s analysis of this claim. 0120162653 4 The Technical Program Support Manager explained that they sought a candidate with an information technology background who had collaborated on technical projects with other offices, performed database-related tasks, run statistical analysis, data manipulation, and had experience with various databases such as Microsoft Office products and intelligence databases, as well as streamlining processes and improving efficiencies. According to the Technical Program Support Manager, he did not recommend Complainant for the position because he was vague in response to several interview questions. The Technical Program Support Manager asserted that the position was highly technical in nature and the selectee was the most qualified candidate because he was currently a Program Manager and he discussed collaborating with a number of personnel and databases, programming and other technical issues. The other official who participated in the interview of Complainant stated that she rated him lower because his direct experience did not relate to the questions as well as the other candidates’ experience did. The selecting official explained that the selectee demonstrated superior abilities, including with databases, programming, experience as an Acquisition Program Manager, and experience as a Business Process Analyst. Additionally, the selecting official noted that the selectee served as a special assistant to the Deputy Acquisition Executive and as a Contract Officer Representative, demonstrating his ability to communicate and manage programs at all levels. The Agency stated that claim (4) was dismissed prior to the investigation on the grounds of failure to state a claim. Upon further review, the Agency determined that the dismissal was proper as the matter at issue was an isolated incident involving an inappropriate religious comment that was not accompanied by any concrete action. With regard to claim (6), Complainant claimed that a GG-12 should be the backup to a GG-12 and not a GG-13. Complainant stated that he was concerned that if a GG-13 was out on leave, due to the higher production requirements, he could potentially fall behind in his own work because he would not be backing up a GG-12 with comparable production. Complainant’s Supervisor stated that Complainant was not the primary backup, but was an alternative backup to a GG-13. According to the Supervisor, she believed Complainant was capable of doing the work and that although GG-13s have more requirements, they were all performing the same process. The Supervisor noted that another GG-12 also served as an alternate backup to a GG-13. The Supervisor further stated that everyone had to have responsibility as a backup to ensure there was adequate coverage throughout the day and that she was not thinking about grade levels. The Agency determined that Complainant did not establish a prima facie case of race or age discrimination with respect to claims (1) and (3). As for the basis of disability, the Agency also determined that Complainant failed to set forth a prima facie case. The Agency reasoned that the decisionmakers in claims (1) and (3) were not aware of Complainant’s disability. Further, the Agency stated that there was no evidence in the record that Complainant formally applied for any reasonable accommodation for his disability. 0120162653 5 The Agency determined that, assuming arguendo Complainant had set forth a prima facie case under the alleged bases for claims (1) and (3), it articulated legitimate, nondiscriminatory reasons for its actions in those claims. The Agency further determined that Complainant failed to establish that those reasons were pretext intended to hide discriminatory motivation. With regard to claims (1) and (3), the Agency stated that Complainant failed to demonstrate that his skills were clearly or plainly superior to the skills of the selectees. The Agency noted that Complainant was ranked second in the selection at issue in claim (1) and that as to claim (3), Complainant was not recommended because his answers were vague on five interview questions. As for claim (6), the Agency determined that Complainant failed to set forth a prima facie case of reprisal based on Complainant’s failure to show that he was subjected to an adverse employment action by being designated as an alternate backup to a GG-13 employee. The Agency stated that assuming arguendo Complainant had established a prima facie case, it presented legitimate, nondiscriminatory reasons for its action. The Agency noted that Complainant’s Supervisor stated that there were many more GG-12s than GG-13s and her decision to utilize Complainant in this instance was based on equitable distribution of workload. The Agency determined that Complainant failed to show that any discriminatory motivation based on his EEO activity was a factor in this decision. CONTENTIONS ON APPEAL On appeal, Complainant contends that on numerous occasions prior to the selections at issue, Agency managers inquired of his years of service and when he could retire, and commented that he was “older than dirt.” Complainant maintains that between 2011 and 2015, only non-white employees were promoted and/or hired into the section, and that after he transferred to another unit in April 2015, there were no white employees in the section. Complainant argues that he has extensive work experience on the Joint Dissemination System from when he served for several months in 2012 performing the duties of a GG-13. Complainant states that as a Technical Information Specialist from March 2012 – February 2014, his performance was rated as “Excellent” and his supervisors stated that he was ready for greater responsibility. Complainant contends that a three-month detail assignment working with the Joint Distribution System was not made available to him and was given to the eventual selectee for the position at issue in claim (1). Complainant states that the detailing of the eventual selectee had the effect of denying him the opportunity to obtain the experience in the position that the Agency subsequently indicated he needed for the position. According to Complainant, the assignment of the detail violated Agency policy against assigning higher level duties/responsibilities non-competitively. With regard to claim (1), Complainant states that the Technical Program Support Manager did not review either his or the selectee’s performance evaluations nor did he take into account his more than ten years of experience in the 1412 job series and his rotational assignments in comparison with the selectee. 0120162653 6 Complainant further claims that the vacancy announcement did not mention the Joint Distribution System. Complainant argues that the fact he was assigned to back up a GG-13 shows that he was considered perfectly capable of performing such work. Complainant states that in addition to the instant complaint, he also filed an EEO complaint in 2008 which involved his Supervisor. With regard to the selection at issue in claim (3), Complainant points out that the Technical Program Support Manager, an African-American, was involved in the selection of an African-American just as he had been in the selection involved in claim (1). Complainant points out that the Technical Program Support Manager and his Supervisor were notified of the instant complaint less than a month before he interviewed for the position at issue in claim (3) and that shortly afterwards he received the assignment at issue in claim (6). In response, the Agency asserts that Complainant falsely claims that he was not afforded the same opportunity to perform the GG-13 detail duties before the selectee in claim (1) was competitively selected for the position at issue in claim (1). The Agency states that Complainant received the same email solicitation for the detail opportunity that was sent to the selectee and all other GG-12 employees in Complainant’s division. The Agency points out that the difference between Complainant and the selectee is that Complainant failed to express an interest in the detail opportunity. With regard to claim (1), the Agency states that Complainant failed to provide any evidence to establish a prima facie case of age discrimination given that he failed to identify the selectee’s age or how age was purportedly considered for the position. The Agency maintains that Complainant provided no factual support to his claim that an unnamed manager said he was “older than dirt.” The Agency also argues that Complainant did not provide evidence to support a prima facie case of disability discrimination because he did not specify when his autoimmune disorder disability was documented prior to his nonselection or that the identified officials knew about it. Further, the Agency asserts that Complainant did not offer supportive evidence for his claim that the Technical Program Support Manager only promoted or favored African-Americans. The Agency discounts Complainant’s focus on the predominant numbers of African-Americans in his former section, noting this does not prove that the managers discriminated against Complainant based on his race. The Agency cites the selecting official’s statement that the selections in claims (1) and (3) were based on the interview writeups and resumes. With respect to claim (6), the Agency states that Complainant was assigned to be an alternate for a GG-13 employee, but not the primary backup. The Agency points out that another GG-12 employee and a lower graded employee were also assigned as an anticipated alternate to a GG-13 employee. According to the Agency, the Supervisor started that she drafted these assignments in order to ensure that the work was distributed equitably and to ensure that enough coverage existed during the day in case anyone was absent. 0120162653 7 ANALYSIS AND FINDINGS Initially, we find that the Agency properly dismissed claim (4) for failure to state a claim. The Commission has consistently held that a remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995). 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 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. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We shall assume arguendo that Complainant set forth a prima facie case of discrimination under each of the alleged bases with regard to his nonselection in claims (1) and (3). With regard to Complainant’s claim of disability discrimination, Complainant stated that he suffered from arthritis, an autoimmune disorder and neuropathy, and that he was limited in walking long distances, climbing stairs, standing and lifting more than twenty pounds. We shall assume arguendo without finding so that Complainant is an individual with a disability. The Agency noted that the selectee had current working knowledge of all areas of the Joint Distribution System and was able to articulate the purpose of the Joint Distribution System and each component, and he provided examples of his performance when creating, modifying, or suspending accounts The selecting official explained that she chose the selectee based on his resume and interview write- up. According to the selecting official, Complainant demonstrated very good skills as a Technical Information Specialist, but that he had not worked in all areas of the Joint Distribution System such as the Statement Intelligent Interest and the Compartmented Address Book. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its selection decision in claim (1). 0120162653 8 With respect to claim (3), the Technical Program Support Manager stated that he did not recommend Complainant for the Program Manager position because Complainant was vague in response to several interview questions. The Technical Program Support Manager asserted that the position was highly technical in nature and the selectee was the most qualified candidate because he was currently a Program Manager and he discussed collaborating with a number of personnel and databases, programming and other technical issues. The selecting official explained that the selectee demonstrated superior abilities, including with databases, programming, experience as an Acquisition Program Manager, and experience as a Business Process Analyst. Additionally, the selecting official noted that the selectee served as a special assistant to the Deputy Acquisition Executive and as a Contract Officer Representative, demonstrating his ability to communicate and manage programs at all levels. We find that the Agency has presented legitimate, nondiscriminatory reasons for its selection decision in claim (3). In terms of claim (1), Complainant argues that he was disadvantaged by not being afforded the opportunity to serve in the detail assignment that the selectee worked in prior to his selection for the Technical Information Specialist position. Complainant claims that the Agency violated its policy in the awarding of the detail. Complainant also maintains that he was more qualified than the selectee based on his years of experience, performance ratings, and awards. Upon review of the record, we discern little support for Complainant’s contentions. The record indicates that Complainant was notified of the detail opportunity but unlike the selectee, he did not express interest in serving in the detail. The policy that Complainant claims was violated did not exist at the time of the detail. Complainant has not shown that his qualifications were so clearly superior to the selectee so as to infer that discriminatory motivation was involved. In particular, Complainant lacked the extensive background that the selectee had as to various facets of the Joint Distribution System. We find that Complainant has not established that the Agency’s reasons for his nonselection were pretext intended to hide discriminatory motivation. As for claim (3), Complainant contends that the Technical Program Support Manager favored African-American candidates and that management learned of the instant complaint shortly before this selection occurred. The record reveals that the selectee was already working as a Program Manager and he had a much better interview than Complainant. Complainant has not presented persuasive evidence that the Technical Program Support Manager favored African-American candidates over Caucasian candidates. We note that one of the two candidates recommended by the Technical Program Support Manager is Caucasian. We discern no evidence of retaliatory motivation in this selection. It is clear based on his Program Manager experience and his interview that the selectee was a more qualified candidate than Complainant. Thus, we find that no discrimination occurred as to claim (3). With regard to claim (6), Complainant contends that a GG-12 employee should not be assigned as an anticipated alternate for a GG-13 employee. Complainant points out that the assignment was issued a few months after management learned of the instant complaint. However, Complainant was not the only GG-12 employee assigned in that role and in fact an employee below the GG-12 level was given the same backup assignment for a GG-13 employee. 0120162653 9 The Agency explained that there were significantly more GG-12 employees than GG-13 employees and that the assignment of Complainant was made to ensure equitable distribution of duties and coverage of the position, and it was believed Complainant was capable of performing that level of work. We discern no persuasive evidence of retaliatory intent as to this claim. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 0120162653 10 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 June 26, 2018 Date Copy with citationCopy as parenthetical citation