Bertram K.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

0120182548 (E.E.O.C. Sep. 5, 2019)

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

Bertram K.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120182548

Hearing No. 430-2016-00005X

Agency No. 150044HQFE

DECISION

On July 19, 2018, 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
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 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 order.
ISSUE PRESENTED

Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) correctly
determined that Complainant was not subjected to discrimination based upon race and age when,
on January 29, 2015, he was not selected for the position of Director of Strategic Engagement
under Vacancy Announcement No. 15-00-HQ-FE-1.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for a position in
the Agency’s Office of Fossil Energy (OFE) in Washington, DC.

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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On March 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian) and age (58) as set forth above. Complainant applied
for the position of Director of Strategic Engagement in the OFE. This position was in the Senior
Executive Service (SES). The Agency received a total of six applications. The Agency formed a
selection panel to evaluate the applicants. Three applicants, Complainant and two others, were
referred to the selecting official (SO). The selection panel rated C1, the selectee, as “Superior.”
Complainant and C2 were rated “Very Good.”

With respect to Complainant, the selection panel noted that it “did not appear that [he] had the
depth of experience working with multi-disciplinary teams in fossil energy technologies, including
carbon capture storage (CCS) that were reported by the highest ranked candidate.” The selection
panel made a similar observation regarding C2, adding that he also did not have the requisite
experience in “fossil related policy issues,” unlike C1.

SO interviewed all three finalists. Complainant’s interview with SO was on December 1, 2014.
Complainant traveled to Washington, D.C. for his interview, as he was the only applicant outside
the Washington commuting area. The Agency paid for Complainant’s plane ticket, and pursuant
to that process, obtained Complainant’s, among other information, date of birth.

On December 3, 2014, SO selected C1. The Agency’s Executive Resources Board (ERB) ratified
SO’s selection decision. The ERB agreed with the observation that C1’s “intimate knowledge and
richness as to international efforts clearly and demonstrably” exceeded other candidates’
experience. According to the ERB, Complainant did not display “a depth of experience working
with multi-disciplinary teams in fossil energy technologies including CCS that were reported by
[C1].” The ERB ultimately concluded that Complainant’s credentials were not ideal for the
position.

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 Administrative Judge.
Complainant timely requested a hearing. After both parties submitted motions for a decision
without a hearing, the AJ assigned to the case issued a decision without a hearing on May 21, 2018.
The AJ found that other than relying on his prima facie showing, Complainant presented no
evidence that his race, age, or any other prohibited factor was considered by the Agency in its
selection process. When the Agency failed to issue a final order within forty days of receipt of the
AJ’s decision, the AJ’s decision, finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged, became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i).

CONTENTIONS ON APPEAL

Among other things, Complainant argues that there are major errors in the AJ’s statement of the
material facts, concluding that he has shown by the preponderance of the evidence that C1 was
indeed preselected even before the interviews began; that the qualification ratings of the candidates
by the ERB board, which he maintains occurred prior to the interviews not afterward, were a moot
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point when EEO laws have been violated; and that the pre-selection was an intentional act of
discrimination, as no matter how qualified Complainant was, he would not have been selected.
Complainant requests that the AJ’s decision be reversed in his favor or that he at least be given a
fair chance at a hearing.

The Agency, among other things, argues that there is evidence in the record to support all of the
AJ’s factual conclusions, and that Complainant’s appeal appears to rest entirely on his belief that
the AJ made incorrect factual conclusions.

The Agency also asserts that Complainant’s appeal is “disingenuous” because he was the first
party to move for summary judgment and that in doing so, he indicated to the AJ that there was no
genuine issue of material facts in dispute. Complainant, according to the Agency, only took issue
with the undisputed facts proffered by both parties when the AJ issued a decision that was
unfavorable to him. The Agency requests that the Commission deny Complainant’s appeal and
affirm the AJ’s decision.

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 . . .”);
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”).

ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must 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.
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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 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, among other things,
Complainant contends that there are major errors in the AJ’s statement of the material facts,
concluding that he has shown by the preponderance of the evidence that C1 was preselected even
before the interviews began; that the qualification rating of the candidates by the ERB board prior
to the interviews were a moot point when EEO laws have been violated; and that the pre-selection
was an intentional act of discrimination, as no matter how qualified he was, he would not have
been selected. Ultimately, the AJ correctly determined that there are no genuine issues of material
fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a
hearing was appropriate.

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 802 n.13. 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). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race and age; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. We also find no persuasive evidence of pretext. For the most part, Complainant’s
allegation of discrimination is based on his belief that C1 was pre-selected. Although we find no
evidence to support this assertion, we note that the Commission has long held that that even if
preselection occurred, it would not be unlawful unless Complainant can show that the preselection
was driven by discriminatory animus.
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See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996).
Preselection, per se, does not establish discrimination when it is based on the qualifications of the
selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request
No. 05931038 (Jul. 28, 1994). Again, we find no persuasive evidence of pre-selection in this case.
The evidence shows that all three top candidates, including Complainant, went through the
interview process, and C1 emerged as the selectee because of his experience and knowledge. The
ERB, in ratifying SO’s decision, found that “[C1] brings an intimate knowledge and richness to
the international efforts, which clearly and demonstrably exceeds the other candidates.”
Employers have broad discretion to set policies and carry out personnel decisions and should not
be second-guessed by a reviewing authority absent evidence of unlawful motivation. Burdine, 450
U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).
Accordingly, we find that Complainant has presented no disputed genuine issues of material fact
to support a reversal of the AJ’s summary judgment decision in favor of the Agency.

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 order finding no discrimination.

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 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. 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.
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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 (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

September 5, 2019
Date