[Redacted], Selene M., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 26, 2022

Appeal No. 2020004178 (E.E.O.C. Apr. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leif S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 2021004037 Hearing No. 530-2020-00229X Agency No. MINT-19-1009-F DECISION On July 10, 2021, 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 May 3, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Machine Tool Operator, WG 9, at the U.S. Mint facility in Philadelphia, Pennsylvania. On August 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (neck surgery/anterior cervical discectomy and fusion), and reprisal for prior protected EEO activity when: he was not selected for the position of Steel Die Engraver, which was advertised under Vacancy Announcement No. 18-MINT-291- M. 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. 2021004037 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 23, 2021, motion for a decision without a hearing and issued a decision without a hearing on May 3, 2021. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for the non- selection and that Complainant had not presented any evidence to indicate that the reason was pretext for discrimination. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant contends the AJ did not properly consider all the facts. He further reiterates his assertions that the non-selection was discriminatory because he was highly qualified for the position and the Agency improperly based the selection on an interview, rather than experience and work history. In support of his appeal, Complainant also submits new evidence in the form of a letter from a supervisor attesting to Complainant’s work quality. Additionally, Complainant seeks to add an additional claim of reprisal, alleging the Agency provided false information which resulted in the denial of his disability claim with the Veterans Administration.2 In response, the Agency contends that the AJ properly determined that the Agency provided a legitimate, nondiscriminatory reason for the non-selection; namely, that Complainant did not interview as well as the selectees. The Agency maintains that Complainant did not establish that the reason was pretext for discrimination. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting 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 . . .”); 2 We note that no new evidence will be considered on appeal. In addition, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004). Moreover, to the extent Complainant is challenging the merits of the denial of benefits from the Veterans Administration, the Commission is not the proper forum to address such a claim as the Commission has no authority to enforce the laws providing assistance to veterans. See Sanchez v. Dep’t of the Navy, EEOC Appeal No. 01994002 (Jan. 8, 2001). 2021004037 3 see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). Summary Judgment 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. 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 instant 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 asserts that the AJ did not properly consider all the facts and that a hearing should have been held. However, he has not identified any specific facts that were not considered by the AJ, nor shown that any material facts are in dispute which would preclude summary judgment. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). 2021004037 4 We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, her issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This established order of analysis, in which the first step normally consists of determining the existence of a prima facie case, need not be followed where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue. Since the instant complaint involves an allegation of disparate treatment and since the agency articulates a legitimate nondiscriminatory reason for not selecting complainant, it is Complainant’s burden to demonstrate by a preponderance of the evidence that the agency’s non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary’s Honor Center v. Hicks, 509 U.S 502 (1993). The Selecting Official (SO) stated that there were four vacancies that were filled through the job announcement and the ARC Human Resources office reviewed the applicants’ resumes and application materials to determine the best qualified candidates.3 See Report of Investigation (ROI) at 99, 102, 104. He explained that eight applicants, including Complainant, were deemed to be the best qualified and were scheduled for interviews. See ROI at 104-105. According to SO, he observed all the interviews and ultimately made the selections based on the interview scores awarded by the interview panel members. See ROI at 99. The interview panelists explained that each applicant was asked the same eight questions and their answers, for each question, were rated on a scale of 1 to 5. See ROI at 177, 186. The interview panelists rated and ranked the applicants’ answers based on five factors relevant to the position: die finishing experience, attention to detail, inspection experience, willingness to learn, and work ethic. See ROI at 103. The SO then reviewed the interview notes and the scores, and ranked the candidates based on their scores. See ROI at 100, 118. Complainant received a final score of 3.0 out of 5.0, ranking him fifth out of the eight candidates who were interviewed. See ROI at 118. The record contains the contemporaneous interview notes and final scoring matrix for each applicant. See ROI at 118-74. The interview panelists explained that Complainant’s answers were short, not very detailed or specific, and sometimes unresponsive to the question. See ROI at 180, 188, 191. One of the panelists further explained that Complainant did not have experience in “cleaning CNC mill lines in art.” See ROI at 191. The SO also stated that Complainant’s interview did not indicate his experience in cleaning dies or master tooling. See ROI at 11-12. The candidates with the top four scores were selected for the four vacancies. See ROI at 104. In a non-selection case, a Complainant may show that an employer’s reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to those of the selectee. 3 The acronym ARC is not defined in the record. 2021004037 5 Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). Here, Complainant contends that the non-selection was discriminatory because the white applicants who were selected were interviewed twice and given additional training. He also states that he was well-qualified for the position and should have been selected based on his work experience rather than the interview process. We find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for the non-selection are a pretext for discrimination. As an initial matter, we note that neither the SO nor the interview panelists had any knowledge of Complainant’s prior EEO activity. See ROI at 99, 176, 185. There is also no evidence in the record to support Complainant’s assertion that the white applicants were interviewed twice or given any additional training. The SO explained that the position was initially posted with the wrong appointment term and so the vacancy announcement needed to be corrected and then re-posted. See ROI at 112. He stated that the applicants who applied under the initial posting were interviewed at the time but were not interviewed again after they re-applied under the second, corrected posting. See ROI at 112. He affirmed that each applicant, including Complainant, was only interviewed once. See ROI at 100, 112. Complainant has not submitted any evidence to support his assertions of pretext. Complainant’s subjective assessment of his own qualifications is not evidence of pretext. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). To the extent Complainant challenges the Agency’s reliance on the interview process, rather than on his work experience, we note that this is not evidence of a discriminatory motive. We have consistently recognized that an agency has broad discretion to carry out personnel decisions and should not be second- guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). While it is clear that Complainant disagrees with the Agency’s actions, disagreement with an Agency’s actions is not sufficient to establish that the Agency’s actions were a pretext for discrimination. See Harris v. Dep’t of the Army, EEOC Appeal No. 01940486 (Sept. 6, 1994), request to reconsider denied, EEOC Request No. 05950046 (Mar. 21, 1996). 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 action finding that Complainant was not subjected to discrimination as alleged. 2021004037 6 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. 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. 2021004037 7 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. 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 28, 2022 Date