[Redacted], Roman B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2021003075 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roman B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2021003075 Hearing No. 570-2019-01322X Agency No. 2018-WHSFSD-091 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 18, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer, GS-0801-13, at the Agency’s Washington Headquarters Service/Facility Services Directorate (FSD) in Alexandria, Virginia. On October 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Hispanic) 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. 2021003075 2 1. On August 7, 2018, Complainant learned that he was not selected for the position of General Engineer, GS-0801-14, announced under Vacancy Announcement Number ST-10252872-18-TB; and 2. On August 24, 2018, Complainant learned that he was not referred, and therefore not selected, for the position of Quality Assurance Specialist, GS-1910-13/14, announced under Vacancy Announcement Number DE-10211745-18-SNF.2 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 requested a hearing. When Complainant did not object,3 the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complainant, he failed to create a genuine issue of material fact to establish discrimination based on race or reprisal. Assuming for the sake of argument that Complainant could establish a prima facie case of discrimination or retaliation, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to Claim 1, the AJ determined that Complainant was not selected for the General Engineer position because his application was not ranked within the top five candidates who were selected to be interviewed for the position. The selecting official (SO), Director of FSD, Engineering Construction Management, Construction Management Division, GS-0801-15, “stated that, of the 22 candidates whose applications were referred, . . . only five individuals were interviewed based on a qualification assessment.” The hiring panel made the assessment and ranked the top five individuals highly “because of their, ‘significant amount of recent and relevant life cycle program and project management experience, and they addressed 2 The complaint originally included a third claim that, “on July 24, 2018, Complainant became aware he was not selected for the Project Manager, GS-0301-13/14, position, Job Announcement Number ST-10203494-18-JJ, with FSD.” The Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. We find that the Agency correctly dismissed this claim. Complainant’s September 10, 2018 contact was beyond the 45-day time limitation period for contacting an EEO counselor. Complainant did not provide an explanation for his untimely contact and does not argue on appeal that this claim was improperly dismissed. 3 On appeal, Complainant argues that he was unable to respond to the Agency’s motion for a decision without a hearing before the AJ because the attorney who had been representing Complainant left his law firm without informing Complainant. Commission regulations provide that a complainant is responsible at all times for proceeding with the complaint even if he has designated a representative. 29 C.F.R. § 1614.605(e). Furthermore, we have considered all arguments made in the record by Complainant in this appeal. 2021003075 3 the position description criteria directly and concisely in their resumes with a significant workload of pertinent, recent and relevant examples.’” In addition, the AJ found that the top candidates “held a Top-Secret security clearance” and listed various certifications and licenses on their resumes, such as “DAWIA [Defense Acquisition Workforce Improvement Act] certification and Contracting Officer warrants.” Complainant’s resume, by comparison, indicated that “he has a Secret clearance and does not demonstrate that he holds DAWIA certification or a Contracting Officer warrant.” SO selected one of the top five candidates, who ultimately declined the job offer, and then SO subsequently chose the selectee for the position who was also among the top five candidates. The AJ found that, despite Complainant’s assertions that he was the best qualified for the position, his resume and qualifications were not “plainly superior” to selectee’s qualifications. The AJ therefore concluded that Complainant “failed to rebut the Agency’s legitimate, nondiscriminatory reason for his nonselection to the position of General Engineer.” Regarding Claim 2, the AJ found that Complainant was not selected for the position of Quality Assurance Specialist because it was announced as a Delegate Examining Unit (DEU) position. According to a Human Resources Specialist (HRS), GS-0201-13, under the DEU process, “preference eligible veterans receive absolute preference within each category.” The AJ found that such a position “required the Agency to select any qualified veteran, absent a request to bypass a veteran. Since there was no request to bypass a veteran, a veteran had to be selected.” HRS, who prepared the referral candidate list for the position, stated that Complainant is not a veteran, but that the selectee for the Quality Assurance Specialist position “possessed the qualification criteria and is a veteran.” Complainant does not dispute these facts but argues that “the Human Resources Department blocked him from fairly competing by implementing a veteran preference policy.” The AJ concluded that “Complainant has not set forth any facts or evidence to demonstrate that the position was advertised under DEU for the purpose of preventing him from being referred or selected” and that he therefore failed to show the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination or reprisal. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable factfinder could find in favor of the nonmoving 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order implementing them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2021003075 4 In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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). 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. 2021003075 5 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. 2021003075 6 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 April 14, 2022 Date