Ricardo K.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 15, 2019

2019002401 (E.E.O.C. Nov. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ricardo K.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019002401

Agency No. ARCESF17AUG02995

DECISION

On January 7, 2019, 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
December 14, 2018, final decision concerning his equal employment opportunity (EEO)
complaint. He alleged 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 (ADEA), 29 U.S.C. § 633a.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s US Army Corps of Engineers facility in San Francisco, California.

On November 9, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American/Native American), national
origin (Hispanic), age (65), and reprisal for prior protected EEO activity under Title VII when,
on or about June 21, 2017, Complainant became aware that he was not selected for the position
of Attorney-Advisor, GS-0905-14.

The pertinent record reveals the following facts.

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.
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The Agency posted a vacancy announcement, soliciting candidates for the position of Attorney
Advisor, GS-905-14, located in San Francisco, California. The position was announced through
USAJOBS under Vacancy Announcement No. WTKC17792870192068.

Complainant applied for the GS-14 attorney position, along with 36 other applicants.

Complainant was 66 years old at the time of the selection decision at issue. The Vacancy
Announcement did not require any document that would include an applicant’s age for outside
applicants. Complainant was not required to provide any documents identifying his age.

He had filed prior EEO complaints involving non-selection actions against the Agency.

A selection panel was convened. The three panel members were the District Counsel, who was
also the selecting official (Caucasian, age 65); the Deputy Chief, Engineering and Technical
Services (Asian / Filipino, age 63) and the Assistant Chief Counsel / Division Counsel, South
Pacific Division (Caucasian, age 66).

There is no evidence that the panel had any knowledge of Complainant’s race, age or prior EEO
activity when the panel considered his application.

Complainant was interviewed, by telephone, along with three other candidates who were selected
for interview. All candidates were asked the same questions. The selection at issue was based on
consideration of the resumes and the candidate’s responses to the interview questions. The Panel
members indicated they agreed that the GS-14 attorney should have strong leadership and
communication skills Complainant was rated the lowest of the four candidates interviewed.
Panel members explained that during the interview, Complainant identified contract law and
labor and employment law as his strong areas, but the position duties at issue did not include
labor and employment law. They also indicated that Complainant was the only applicant to use
unprofessional language during his interview to describe his work experience, which caused the
panel concern about Complainant’s ability to demonstrate positive leadership.

The selection panel unanimously recommended the selection of another candidate (Caucasian,
age 56, no prior EEO activity) who had been serving as the Assistant District Counsel, USACE
Kansas City District. The selecting official said that she did not know the selectee and was not
aware of his race or age at the time of the selection.

The selecting official averred that Complainant was not selected because she believed that
Complainant “did not have contract law litigation experience before the ASBCA or the Court of
Federal Claims (COFC)” and did not have recent or relevant contract law experience as an
attorney. 2

2 Complainant had voluntarily retired as a GG-0905-15, Supervisory Attorney Advisor (General)
with the International Boundary and Water Commission, Legal Affairs Office, effective May 3,
2013.
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The selecting official also averred that “during the interview, [Complainant] stated that he had no
experience before the ASBCA or the COFC,” even though his resume listed litigating claims and
disputes filed with the ASBCA.

Based on the evidence developed during the investigation, the Agency issued a final decision
concluding that Complainant failed to prove that the Agency subjected him to discrimination as
alleged. The Agency reasoned that Complainant could not establish his claims of discrimination
or reprisal, because the selection panel members had never met him and had no knowledge of his
race or age, or that of the selectee. In addition, the Agency reasoned that the Panel members were
not aware of Complainant’s prior EEO activity. Next, the Agency found that it had articulated a
legitimate, non-discriminatory reason for the selection of the other candidate. The panel
considered the qualifications of the selectee to be superior to those of Complainant. It was
undisputed that Complainant was ranked last among those interviewed. The Agency found that
Complainant presented no evidence proving that management’s actions were based upon his
protected group status or were otherwise a pretext for unlawful discrimination.

This appeal followed.

ANALYSIS AND FINDINGS

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”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation 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, footnote 3.
The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, Complainant alleges that the Agency discriminated against him based on his race, national
origin, age, and retaliation, when the Agency did not hire him for an attorney position. The
record, however, does not show that his non-selection was because of any of his protected bases.
In fact, there is no evidence indicating that the selection panel had any knowledge of
Complainant’s race, national origin, age or prior EEO activity or these same characteristics of the
eventual selectee. Moreover, the responsible Agency officials provided a legitimate, non-
discriminatory reason for not selecting Complainant – that his prior work experience did not
align with the duties of the position in question.

We note that Complainant averred that he had more years of experience than the selectee. He
also argued that the selecting official should not have served as both a panel member and as the
selecting official, and that one of the panelists should not have been on the reviewing panel for
an attorney position, because he was not an attorney. Even accepting these concerns as valid, this
does not establish unlawful discrimination. It was undisputed that the selection panel rated the
selectee higher than Complainant, following the interviews, based on relevant prior work
experience. Although Complainant disagrees with the ranking, it is undisputed that the decision
was based on non-discriminatory factors.

Upon careful review of the evidence of record, we conclude that the Agency’s final decision was
appropriate and supported by the weight of the record evidence.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

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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 tends 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. 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.
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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

November 15, 2019
Date