[Redacted], Lionel A., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 26, 2022

Appeal No. 2021000533 (E.E.O.C. Jan. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lionel A.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021000533 Hearing No. 410-2020-00156X Agency No. 19-67004-01635 DECISION On October 27, 2020, 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 September 30, 2020, 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., and 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 worked as a Supervisory Logistics Management Specialist, GS-0346-12, at the Agency’s Weapons Systems Management Center at the Marine Corps Logistics Command in Albany, Georgia. On May 31, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him: 1. On the basis of his race (African American), color (very light complexion), sex (male), age (54, YOB: 1964), and reprisal (for prior EEO activity in approximately 2008-2010, 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. 2021000533 2 prior EEO activity on or about January 9, 2017, and prior EEO activity on or about April 13, 2017, all such prior activity involving allegations of non-selection based on racial discrimination) by Deputy Director Weapon Systems Management Center; Director Ground Transportation & Engineer Systems Division; Supervisory Logistics Management Specialist; and Director Enterprise Asset Planning Division, on or about February 4, 2019, when he was not selected for employment in a GS-0346-13 position as a Supervisory Logistics Management Specialist (Cert # 20181029-CACJ-O 11, Job Announcement #039028) at Marine Corps Logistics Command. 2. On the basis of his race (African American), color (black; very light complexion), sex (male), age (54; YOB: 1964), Reprisal (for prior EEO activity in approximately 2008- 2010, on or about January 9, 2017, and on or about April 13, 2017, all such prior activity involving allegations of non-selection based on racial discrimination) by Supervisory Logistics Management Specialist, G-4, Physical Inventory Control Division, Inventory Support Branch; Supervisory Project Director, Process Improvement Branch, Business Performance Division, Quality Management Center; and Branch Head, Central Inventory Accountability Branch, on or about March 6, 2019, when he was not selected for employment in a GS-0346-13 position as a Supervisory Logistics Management Specialist (Cert# 20190208-CACJ, RPA 133289) within the G-4 at Marine Corps Logistics Command. Subsequently, the Agency accepted the foregoing claims of discrimination and then conducted an investigation into the matter. The investigation showed that Complainant applied for the position of Supervisory Logistics Management Specialist (Certificate #20181029-CACJ-011) at Marine Corps Logistics Command (“Position 1”). He was referred and interviewed for Position 1. Initially, the panel interviewed three people, including Complainant and the eventual Selectee (“Selectee 1”). After a discussion with the selecting official for Position 1 (“Selecting Official 1”), the panel members performed a second screening of resumes and then interviewed an additional two candidates. Scores were tabulated for all the interviewed candidates based on their resumes and interviews. Selectee 1 ranked first with 86/100 points. The panel members agreed Complainant ranked second with 64/100 points. Selectee 1 was ultimately selected for Position 1. The investigation further showed that Complainant applied for the position of Supervisory Logistics Management Specialist (Certificate #20190208-CACJ) (“Position 2”). 48 candidates were referred for Position 2, including Complainant. Two of the candidates declined further interest in the position. The panel prescreened the remaining 46 resumes and identified 11 resumes possessing the two critical screening elements for further review. Complainant’s resume was not found to possess the critical screening elements and he was not one of the applicants whose resume was selected for further review. Two of those 11 applicants were interviewed and one of the was ultimately selected (“Selectee 2”). 2021000533 3 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision by summary judgment on September 28, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends the AJ did not take the evidence presented by Complainant into account in his analysis and decision. Specifically, he avers that the AJ relied on selection statistics for all pay grades and did not take into consideration the evidence presented by Complainant about the statistics for selections at the GS- 13 level specifically. He also states Selectee 1 did not have the leadership experience required by Hiring Order MARCORLOGCOMO 12335.1B, and Selectee 1 should not have received enough points to qualify for an interview. He states Selectee 1 should have received only 6 points for Experience, but was instead given 22 points. Complainant asserts that the job was set up for Selectee 1 and this sort of recruitment is unfair practice. He also stated that a second round of interviews was held and he believes this was due to questioning from applicants about the process. He also noted no alternate for the position was selected as stated by MARCORLOGCOMO 12335.1B. In regard to Claim 2, Complainant contends his resume clearly demonstrates an analytical skill set, but this was not taken into consideration during the prescreening. The Agency did not file a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2021000533 4 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment 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 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 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). In regard to Claim 1, assuming, arguendo, that Complainant established a prima facie case of disparate treatment on his alleged bases,2 we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Here, the record reflects the Agency selected the highest rated candidate, Selectee 1 (African American female, born 1988), who earned a score of 86/100 points compared to Complainant’s score of 66/100 points. All three panel members individually scored Selectee 1 higher than Complainant. The record shows Complainant was rated very highly on his experience and resume by the diverse panel of interviewers, but all three members of the panel indicated that Complainant did not interview well and that Complainant failed in his interview to demonstrate the depth of experience found in his resume. Selectee 1 did not earn as many points for experience based on her resume, but she earned more points in interviews, giving her an overall higher score from all three panelists. Selecting Official 1 indicated he relied on this for his selection. One of the panelists stated in his sworn testimony that “[t]he Complainant has one of the best resumes I have ever seen, however the Selectee gave more quality answers for the questions were we asking. [Complainant] was not able to articulate his experience nor did he completely answer all the questions during the interview process.” He further indicated Complainant was not able to demonstrate the knowledge, skills, and abilities found in his resume during the interview process. 2 Regarding his age claim, we note Complainant was 54 during the relevant period, and both selectees were in their 30s. While there is no bright line test for what constitutes “substantially younger,” that term has generally been applied to age differences of at least five years. Dona A. v. Dep’t of Transportation, EEOC Appeal No. 0120182248 (Nov. 26, 2019). 2021000533 5 He noted Selectee 1 “was able to clearly and fully articulate her skill set annotated in her resume during the interview process. She gave more information than Complainant.” (ROI, p. 539). Another panelist stated that Complainant’s interview answers “lacked sufficient substance” or “were unresponsive on account of misinterpretation of the question.” He also noted Complainant frequently deferred to senior leaders and supervisors for decisions and actions which indicated a perceived reluctance for the supervisory task of accountability. (ROI, p. 551). The final panelist indicated Complainant “did not clearly articulate the wealth of experience demonstrated in his resume; responses lack complete answers and relevant examples for some questions.” (ROI, p. 558). In regard to Claim 2, assuming, arguendo, that Complainant established a prima facie case of disparate treatment on his alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. Here, the record reflects that the selecting official stated Position 2’s capability was as a business function analyst and it was “[v]ery IT [Information Technology] specific.” He indicated that all resumes were prescreened using two of five KSAs and the Complainant did not possess the skills required. (ROI, p. 565). One of the panel members notes that although the panel reviewed 48 resumes, the criteria was very specific to the type of duties to be performed and only a very small number of candidates met the criteria to move on to the interview phase, including Selectee 2 (Caucasian male, born 1986). He further indicated the assessment required the needed skill set to be identified in the resume, and Complainant’s resume did not do so. (ROI, p. 570). Another panelist indicated the position required a greater skill set in data analysis versus logistics management. He stated Complainant’s resume was “[l]acking analytical skills.” (ROI, p. 575). The final panelist stated “Complainant’s resume did not include the level of experience, based on the assessment plan, required to make it through to the interview.” (ROI, p. 581). Complainant failed to establish that the Agency's articulated reason for Complainant's non- selection was pretext for discrimination. A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In regard to Claim 1, Complainant relies heavily on his contention that while Agency statistics for hiring might be evidence of non-discrimination, the hiring statistics for positions at the GS-13 level show that in the past six years, the Weapons Management Center has hired 13 white males, 12 females, and 1 Black person. However, his chart does not make clear the race of the females hired or the sex of the Black person hired. As noted by the AJ, it is also not clear whether Complainant’s chart refers to all hires or selections involving the promotion of current employees (as is at issue here). Selecting Official 1 was identified by Complainant as being an African American Black male and Complainant also identified one of the three panelists as an African American Black male. (He identified the other two panelists as a Caucasian white male and an African American Black female). 2021000533 6 Complainant also contended that Selecting Official 1 and all three panelists were aware of his prior EEO activity, but he failed to provide any evidence to support this contention. Instead he merely asserted without support that they all work in the same building, managers talk to each other, and managers are aware of an employee’s activity. In sworn testimony, one panelist stated he was aware of Complainant’s prior EEO activity (ROI, p. 552). However, Selecting Official 1 stated he was not aware of any formal EEO complaints filed by the Complainant. He further stated that he was not aware of Complainant’s participation in protected EEO activity when he made the contested decision. (ROI, pp. 534-535). The other two panelists also stated they were not aware of Complainant’s prior EEO activity. (ROI, pp. 542-543, 560-561). Complainant states he has more experience than Selectee 1 and he disagrees that he did not interview well. He contends that he provided extensive answers, answered all the questions, and took all the time required by the interview, but he also admitted in his sworn testimony that he thought his answers were too long. He relied on his resume as evidence that he is the more qualified candidate, but he did not point to specifics. Complainant stated that Selectee 1 did not have the requisite leadership experience but as the AJ noted, this is a misstatement of the scoring criteria. The criteria states that to earn 22 points, a candidate should have “[p]ossession of all KSAs with at least 3 years of demonstrated and relevant work experience in a similar line of work.” (ROI, pp. 148-149). This does not require supervising employees for at least three years. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Complainant has asserted that he had superior experience and more years of experience than that of Selectee 1. However, he has not identified the specific experience he believes makes this so. While Complainant may disagree with the selection decision of the Agency, the record does not establish that his background and interview was plainly superior to that of Selectee 1. Complainant has not provided any evidence which shows that reliance on the scoring of the resumes and interviews was discriminatory or pretextual. In fact, he also alleges this position was set up for Selectee 1. While that may show favoritism, it does not demonstrate discrimination or pretext. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). With regard to Claim 2, Complainant states his resume “clearly indicates an analytical skill set.” While he points out specific portions of his resume that purport to show his analytical skills, he has not provided any evidence to show Selectee 2 was not qualified or that Complainant’s qualifications were plainly superior to those of Selectee 2. 2021000533 7 He again alleges that the job was created for a specific individual, but this is not evidence of discrimination or pretext. The record also reflects that all of the panel members for this position, as well as Selecting Official 2, denied that they were aware of Complainant’s prior EEO activity and there is no evidence to dispute their denials. Thus, there is no nexus established between Complaint’s prior protected activity and the current non=selection. Again, mere allegations are not sufficient to create a genuine issue of material fact. Although Complainant has alleged that the Agency acted discriminately, the record simply does not provide any evidence that the selection was motivated in any way by his race, color, sex, age, or prior EEO activity rather than the scoring of the candidates based on their resumes and interviews. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Therefore, we find Complainant has failed to establish his claim of discrimination for either Claim 1 or Claim 2. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2021000533 8 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021000533 9 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 January 26, 2022 Date