0120112849
10-18-2011
Albert A. Esposito, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Albert A. Esposito,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120112849
Hearing No. 530-2010-00228X
Agency No. DLAP-09-1151
DECISION
On May 6, 2011, Complainant filed an appeal from the Agency’s April 11,
2011, final decision 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency
discriminated against him on the bases of color (White) and reprisal
for engaging in prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisory Quality Assurance Specialist, YC-1910-02, at the Agency’s
Defense Supply Center, Clothing and Textiles Supply Chain, Field Clothing
Section (FCS) in Philadelphia, Pennsylvania.
Non-Selection
On June 3, 2009, Complainant applied for the position of Supervisory
Supply Support Manager, YC-0301-02, advertised under vacancy announcement
number DSCP-09-2124. The vacant position was the one directly above
Complainant’s position in the supervisory chain. The vacancy
announcement contained the following relevant information:
• The position’s major duties included working “through subordinate
supervisors and team leaders to direct, coordinate, and oversee division
work activities” such as “responsibility for technical, packaging,
design, quality, and product resolution oversight for all Clothing &
Textile items.”
• The position’s desired skills included: (1) skills with a weight
of “high” – supervision, supply chain, technical skills, quality
assurance, professionalism, leadership, and responsibility/accountability;
and (b) skills with a weight of “average” – clothing and textiles,
customer service, teamwork, oral/written communications, strategic focus,
resource stewardship, and innovation/initiative.
• The position was not a bargaining unit position.
On June 10, 2009, the Human Resources Center (HRC) referred 21 candidates,
including Complainant and the Selectee (non-White), to Complainant’s
Second Level Supervisor (S2) for selection. Based on their applications,
HRC gave both Complainant and the Selectee a rating of 100 points.
Subsequently, S2 interviewed nine candidates, including Complainant and
the Selectee. S2 asked each candidate the same four questions relating
to the position’s desired skills.
On July 30, 2009, S2 selected the Selectee for the position.
In a two-page selection memo, S2 briefly compared the Selectee’s
qualifications to those of the eight non-selected candidates. Regarding
the Selectee, S2 noted that he had a PhD in Textile Chemistry, had over 25
years of experience in clothing and textiles, held positions of increasing
responsibility in private industry, had been a second level supervisor,
and had the strongest interview. In contrast, S2 noted that Complainant
had only a Master’s degree and had a weaker interview.
Workload Reassignment
On January 22, 2010, S2 notified Complainant that his FCS team would be
responsible for managing two additional work programs that previously
were assigned to the Dress Clothing Section (DCS): the Marine Corps
Combat Utility Uniform and the Navy Task Force Uniform. Subsequently,
management gave Complainant two additional employees to assist with the
increased workload.
Formal Complaint and Agency’s Final Decision
Complainant filed an EEO complaint alleging that the Agency discriminated
against him:
1. On the bases of color (White) and reprisal (prior EEO activity in 1997)
when, on August 10, 2009, he became aware that he was not selected for
the YC-0301-02 Supervisory Supply Support Manager position, advertised
under vacancy announcement number DSCP-09-2124;
2. On the basis of reprisal (prior EEO activity in 1997) when, since
1997, he has been non-selected for promotional opportunities, denied
courses for professional certification, denied performance awards,
denied the opportunity for career enhancement, denied job interviews,
and excessively selected for random drug testing; and
3. On the basis of reprisal (instant EEO activity)1 when, on January 22,
2010, he was notified that his workload would be greatly increased due
to the added responsibility of two more major work programs.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge.
Complainant timely requested a hearing but subsequently withdrew his
request. Consequently, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
Initially, the Agency found that Complainant established a prima facie
case of color discrimination (claim 1), but not reprisal discrimination
(claims 1, 2, and 3). With respect to reprisal discrimination, the
Agency found that there was no evidence in the record to suggest a nexus
between Complainant’s prior EEO activity in 1997 and the actions at
issue in the instant complaint. Next, the Agency found that management
articulated legitimate, nondiscriminatory reasons for its actions. As to
claim 1, management explained that the Selectee had the best overall
qualifications in terms of education level, technical and supervisory
experience, and communication skills. As to claim 3, management explained
that it transferred the workload responsibility to Complainant’s team
for improved management efficiency of all utility uniforms and gave him
additional technical staff to handle the increased workload. Finally,
the Agency found that Complainant failed to show that management’s
explanations were a pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency’s final decision erred
in finding no discrimination. Regarding claim 1, Complainant asserted
that the selection process was flawed and that his qualifications
were superior to those of the Selectee. First, Complainant argued
that the Master Labor Agreement mandated the use of interview
panels with a subject matter expert for all selections and that S2,
who was not a subject matter expert, was unqualified to act as the
selecting official. Second, Complainant argued that S2 mistakenly
or willfully inflated the Selectee’s credentials while lowering his
own credentials. Specifically, Complainant argued that S2 erred in his
“final comprehensive assessment”2 of the candidates by: (a) improperly
noting that the Selectee had 25 years of work experience instead of less
than 20 years of work experience (most of it in the private sector);
(b) improperly considering the Selectee’s PhD because the Selectee
failed to submit an official transcript; and (c) failing to mention
Complainant’s Agency work experience, training, or certifications.
In addition, Complainant disagreed with S2’s overall assessment of
his and the Selectee’s qualifications with respect to work experience,
training, certifications, and interview responses.
Regarding claim 3, Complainant asserted that the Agency erroneously
considered his 1997 EEO activity instead of his instant EEO activity
in finding that he failed to establish a prima facie case of reprisal
discrimination. In addition, Complainant asserted that management was
setting him up to fail. Specifically, Complainant argued that he did not
have adequate employee support to compensate for the increased workload.
For example, Complainant noted that after the workload reassignment,
FCS sales were three and a half times greater than DCS sales, but FCS
had two fewer full-time employees.
In response, the Agency addressed Complainant’s contentions on appeal
and requested that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, §�
�VI.A. (Nov. 9, 1999) (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”).
Disparate Treatment
To prevail in a disparate treatment claim such as this, 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. Co. 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, 441
U.S. at 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor
Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Claims 1 and 2 – Reprisal for 1997 EEO Activity
To establish a prima facie case of disparate treatment on the basis of
reprisal, a complainant generally must show that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).
The record reflects that Complainant engaged in protected activity
when he filed an EEO complaint in January 1997 (resolved in May 1997)
and again in August 12, 2009 when he contacted an EEO Counselor about
the instant complaint.
Upon review, we find that Complainant failed to establish a prima facie
case of reprisal discrimination. First, we find that Complainant failed
to show that S2 was aware of his 1997 EEO activity at the time of the
non-selection. S2 averred that he became aware of Complainant’s 1997
EEO activity only during the instant complaint. Beyond Complainant’s
belief that the Agency has a “corporate memory” about who files EEO
complaints, we find that Complainant provided no evidence that S2 knew
about his 1997 EEO activity during the selection process. Complainant
does not allege, and the record does not reflect, that S2 was involved
in his 1997 EEO activity.
Second, we find that Complainant failed to show that a nexus exists
between his 1997 EEO activity and the adverse treatment alleged in the
instant complaint. One way to establish the requisite nexus is to present
evidence that the adverse treatment occurred shortly after the protected
activity. See EEOC Compliance Manual Section 8, “Retaliation,”
No. 915.003, at 8-II.E.2 (May 20, 1998). Here, Complainant alleged
that he was subjected to the following adverse treatment: (a) lack of
performance awards in 2000 and 2001; (b) denied participation in the
Agency’s Business Modernization Program in 2001; (c) excessive drug
testing since 2002; (d) not selected to attend the American Apparel
Manufacturing Association annual meeting in summer 2009; and (e) multiple
non-selections in summer 2009, including the non-selection in claim 1.
We find that adverse treatment occurring between three and twelve years
after the protected activity is insufficient, by itself, to establish the
causal connection required to establish a prima facie case of reprisal.
Claim 1 – Non-Selection and Color Discrimination
Assuming, arguendo, that Complainant established a prima facie
case of color discrimination, we find that the Agency articulated
legitimate, nondiscriminatory reasons for Complainant’s non-selection.
Specifically, S2 averred that he was looking for someone who had technical
experience, experience in supervision, experience relative to metrics
and how to apply them to set goals and objectives for performance, and
good communications skills. In addition, S2 averred that the Selectee
had a PhD, had a strong supervisory background including second level
supervision, held extremely responsible positions directly related
to clothing and textiles in the private sector, and provided thorough
interview answers explaining his application of metrics in the private
sector and his experience communicating with boards of directors.
Further, S2 averred that although Complainant had extensive internal
Agency experience, he only had first level supervision experience and
did not perform as well in the interview.
Because the Agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden shifts to Complainant to prove, by a preponderance
of the evidence, that the Agency’s reasons were a pretext for color
discrimination. Upon review, we find that Complainant failed to show
that the Agency’s reasons were pretextual.
Regarding Complainant’s argument that the selection process was
flawed because of the absence of an interview panel and S2’s lack
of qualifications, we find that the record reflects otherwise. As to
the interview panel, the record reflects that it was optional for the
non-bargaining unit position at issue. Specifically, in an April
20, 2009 email, the Commander of the facility wrote, “One aspect
of our current selection process mandated the use of panels to fill
non-bargaining supervisory positions. I have reviewed this requirement
and, after consultation with appropriate staff members, have decided to
make panels an option … if the selecting official decides to forego the
use of a panel, he/she will make the final selection.” In addition,
DLA Regulation No. 1404.4 (applicable to non-bargaining unit positions)
states, “[P]anels may be convened to interview and recommend candidates
as long as the selecting supervisor remains responsible for making
his/her own selection.” Further, the Master Labor Agreement cited by
Complainant is only applicable to bargaining unit positions. As to S2’s
qualifications, the record reflects that the position at issue reported
directly to S2. We find that, because S2 was the immediate supervisor
for the position, he was qualified to act as the selecting official.
Regarding Complainant’s argument that S2 willfully or mistakenly
inflated the Selectee’s credentials while lowering his own credentials,
we disagree with Complainant’s characterization of S2’s actions.
Specifically, even if S2 misstated the Selectee’s years of work
experience in his selection memo, Complainant failed to show that
S2’s minor miscalculation (25 years versus 20 years) was motivated by
color discrimination or ultimately impacted his choice of the Selectee.
In addition, although Complainant asserted that S2 improperly considered
the Selectee’s PhD, we note that the Selectee’s application included
a report from an international education consultant who verified the
Selectee’s degree. Further, although Complainant argued that S2’s
selection memo omitted information about his experience, training, and
certifications, there is no indication that S2 intended his two-page
selection memo to serve as a “final comprehensive assessment” of the
candidates. In contrast, the record reflects that S2’s selection memo
briefly summarized some of the relevant qualifications of the Selectee
in comparison to the other eight candidates interviewed.
In non-selection cases, a complainant may establish pretext by showing
that his qualifications are “plainly superior” to those of the
selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
We find that Complainant has not made such a showing. Complainant’s
application reflects that he had: (a) an MBA degree; (b) approximately
26 years of Agency work experience in clothing and textiles; and (c)
approximately eight years of supervisory experience (all first level).
The Selectee’s application reflects that he had: (a) a PhD in Textile
Chemistry; (b) approximately 21 years of primarily private sector work
experience in clothing and textiles; and (c) approximately 12 years
of supervisory experience (some second level). Based on the above,
we find that Complainant failed to show that his qualifications are
“plainly superior.”
We note that Complainant disagreed with S2’s overall assessment of his
qualifications and the Selectee’s qualifications, particularly as to
the value of his Agency experience versus the Selectee’s private sector
experience. However, we decline to substitute our judgment for that of
the selecting official. When choosing among highly qualified candidates
for a position, an employer has broad discretion to set policies and 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
(Jan. 16, 1997). In addition, an employer has greater discretion when
filling management level positions. See Wrenn v. Gould, 808 F.2d 493,
502 (6th Cir. 1987). Accordingly, we find that Complainant failed to
show that the Agency’s reasons for his non-selection were a pretext
for color discrimination.
Claim 3 – Workload Reassignment
Assuming, arguendo, that Complainant established a prima facie case of
reprisal discrimination (based on the instant EEO activity); we find
that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, Complainant’s Fourth Level Supervisor
(S4) averred that he transferred the workload to Complainant “to
align the leadership with commodities” so that Complainant’s FCS
team, which primarily handled only utility uniforms, would manage all
the utility uniforms. In addition, S2 averred that he transferred
two technical specialists from DCS to FCS to assist with the increased
workload. S2 explained that this transfer of additional staff was based
on information from the DCS technical supervisor that the reassigned
workload was previously handled by less than two full-time employees.
Because the Agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden shifts to Complainant to prove, by a preponderance
of the evidence, that the Agency’s reasons were a pretext for color
discrimination. Upon review, we find that Complainant failed to show
that the Agency’s reasons were pretextual. Complainant averred,
“[S4] indicated that he thought the workload more properly related to
my section and I agree. However … it came without proper staffing and
at an inopportune time.” We note that the focus of the Commission’s
inquiry is on the employer’s motivation, not its business judgment.
See Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir. 1979).
While Complainant may disagree with the staffing and timing of the
workload reassignment, we find that his disagreement, coupled with
his bare assertions that management’s actions were retaliatory, are
insufficient to show that the Agency’s reasons for its actions were
a pretext for reprisal discrimination.
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 (M0610)
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 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 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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/18/11________________
Date
1 On October 7, 2009, Complainant filed a formal complaint regarding
claims 1 and 2.
2 Complainant referred to S2’s selection memo as S2’s “final
comprehensive assessment.”
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0120112849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112849