[Redacted], Randolph T., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMar 14, 2023Appeal No. 2022002054 (E.E.O.C. Mar. 14, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph T.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002054 Hearing No. 480-2020-00237X Agency No. DON-19-32253-02243 DECISION 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 January 22, 2022 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. 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 Work Leader, WL- 4102-09, at the Agency’s Pearl Harbor Navy Shipyard & Immediate Maintenance Facility in Hawaii. On May 17, 2019, Complainant filed (and subsequently amended) an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of age (53) and in reprisal for prior protected EEO activity when: 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. 2022002054 2 1. on March 29, 2019, and April 26, 2019, Complainant learned that he was not selected for the Painter Supervisor I position (Announcement No. ST-10407873); and 2. The Shop 64 Process Manager issued Complainant a Letter of Caution for a minor accident when other employees without prior EEO activity caused more damage and were not disciplined.2 Regarding Claim (1), the record reveals that Complainant and three other employees applied for the position. The Shipyard Production Superintendent was the selecting official. The Superintendent testified that the announcement sought to fill three vacancies. Therefore, he assembled a resume review panel and ranked the applicants’ resumes. At the end of the review process, Complainant received the lowest scores among the four applicants and was not selected. Complainant argued he should have been selected because his resume and work experience were plainly superior to the younger selectees. Complainant also argued that he was the only candidate with supervisory and project management training. The Superintendent determined that no interviews were necessary because “there was enough of a point difference in resume review that interviews were not deemed needed.” Further, Complainant scored lower than the three selectees because of: [t]he details of the job experiences in Complainant’s resume in relation to the criteria used to score resumes. The selected candidates describe in detail their experiences as a painter or painter work leader, which makes them the most qualified for the position of painter supervisor. When you look at Complainant’s resume, there is very little relevant job experience detailing his duties as a painter and/or painter leader. Majority of his resume details his duties and accomplishments while working for the military or military assistance role. The Superintendent added that, while Complainant may have had more years of service or felt that he had more experience, “his resume did not clearly document and expand on all the experience he has relevant to the position.” One of the resume review panelists, a Shop Resource General Foreman, said that he “rated Complainant the way [he] did because Complainant mentioned working on projects that were not in execution and his knowledge of the corporate applications were questionable.” The record contains a matrix of scores. Therein, Complainant received a total of 47 points out of a possible 80 points. Two candidates tied for second place with 52 points, and the best candidate had 64 points. 2 Complainant withdrew an additional allegation regarding management threatening to cut third shift during the investigation. 2022002054 3 In Claim (2), Complainant did not discuss his own accident, but focused on an incident involving another Agency employee. In that incident, the employee drove a government vehicle into a fire hydrant. Complainant asserted that the employee was not disciplined. The Shop 64 Process Manager testified that he investigated the accident and determined that Complainant was driving a forklift without a valid forklift driver’s license and “knowingly did not conduct an Operators Daily Checklist (ODCL) as is required prior to any forklift operation.” The Shop Resource Foreman added that the identified comparator employee had a driver’s license and stayed on the scene of the accident, whereas Complainant did not have the necessary driver’s license, and left the scene of the accident. 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 requested a hearing. On September 8, 2020, the AJ dismissed Complainant’s hearing request without prejudice. The AJ noted that Complainant had two additional EEO complaints pending. One complaint (Complaint 1) was in the investigative stage while the other was in federal court (Complaint 2). Complaint 2 was being held in abeyance pending the resolution of the instant complaint and Complaint 1. The parties agreed that the instant complaint and Complaint 1 overlapped on factual and legal grounds. Thus, the AJ dismissed the instant complaint with instructions to Complainant that he may reactivate his request for a hearing within 30 days of the date he received the Agency’s report of investigation for Complaint 1. On November 23, 2021, the AJ denied Complainant’s August 19, 2021 motion to reactivate his hearing request in the instant complaint. The AJ explained that Complainant admitted that the 30- day reactivation period began on February 18, 2021, and that his failure to reactivate his hearing request within the prescribed time was a mistake. However, the AJ noted that Complainant did not explain when he learned of his mistake or what efforts he made to cure the error. The AJ further did not accept Complainant’s explanation that the parties were engaging in settlement efforts. Thus, the AJ denied the hearing request and remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency found that the Superintendent’s reasons for not selecting Complainant and the Manager’s reason for issuing Complainant a letter of caution were legitimate and nondiscriminatory. The Agency concluded that Complainant failed to show these reasons were pretext for discriminatory or retaliatory animus. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. 2022002054 4 CONTENTIONS ON APPEAL On appeal, Complainant apologizes for waiting until after engaging in settlement negotiations to reactivate his request for a hearing but insists that there would be no prejudice in allowing him to reactivate his request. Further, Complainant questions why the final decision did not analyze his third claim. Complainant provides, on appeal, a supplemental declaration and additional rebuttals which he admits are not part of the Report of Investigation. Complainant contends he should be allowed to submit additional evidence due to a lapse in communication on the military base. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As a preliminary matter, we address Complainant’s procedural arguments. We agree with the AJ that Complainant did not provide sufficient justification for tolling the AJ’s 30-day deadline. Complainant was aware that he was required to reactivate his hearing request within 30 days of receiving the report of investigation related to Complaint 1, and he did not. In addition, we find unpersuasive Complainant’s argument that the Agency failed to consider his third claim. In his affidavit, Complainant unequivocally stated that he was withdrawing his third claim from consideration, that the matter was a miscommunication, and that the matter was “squashed.” Accordingly, the Commission finds that Complainant withdrew this claim and the matter is not before us. Finally, with respect to Complainant’s submission of new evidence, the Commission notes that as a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). Because Complainant did not make such a showing, we decline to consider the exhibits he submitted on appeal. Turning to the merits of the instant matter, as this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2022002054 5 Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Corp. 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 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, the Superintendent explained that he did not select Complainant because he scored the lowest of the four candidates following a review of their resumes. Complainant’s low scores resulted from a resume that did not demonstrate how his skills were applicable to the position of Paint Supervisor, whereas the other three candidates demonstrated these skills. A review of the candidates’ resumes supports the Superintendent’s explanation. The Manager explained that multiple factors contributed to Complainant being issued a Letter of Caution. Complainant was driving a forklift without a forklift license and left the scene of the accident rather than staying. These facts, according to the Manager, distinguished Complainant’s case from that of the employee who struck the fire hydrant; that employee had a driver’s license and stayed at the accident scene. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Where, as in Claim (1), the alleged discriminatory action is non-selection, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among qualified candidates based on its discretion, provided that the decision is not based upon unlawful criteria. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997). 2022002054 6 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 the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). Complainant does not carry his burden in Claim (1). At most, Complainant summarily concludes that he is a better, more experienced candidate. However, Complainant does not dispute the stated deficiencies in his resume. In Claim (2), Complainant simply does not articulate any evidence tending to establish that Manager acted with discriminatory or retaliatory animus. Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus on any of the alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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. 2022002054 7 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). 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. 2022002054 8 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 March 14, 2023 Date Copy with citationCopy as parenthetical citation