0120130260
03-16-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120130260
Hearing No. 410-2011-00323X
Agency No. DLAN-10-0198
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 5, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supply Technician at the Agency's Defense Distribution Center Albany, Georgia (DDAG).
On October 23, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (African-American), sex (male), age (over 40), and in reprisal for prior EEO activity when:
1. he was not selected for the position of Supervisory Inventory Management Specialist, GS-2010-09, at the DDAG; and
2. he was issued a Notice of Proposed Suspension and a Decision to Suspend in August/September 2010.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 24, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Regarding claim 1, Complainant applied for the position of Supervisory Inventory Management Specialist. Complainant and sixteen other candidates were qualified for the subject position. A panel selection was implemented. The three panelists with an expertise in Inventory Management and outside the leadership chain at DDAG, conducted the interviews. Out of the seventeen candidates, seven candidates, including Complainant, were given interviews via telephone.
The AJ noted that a scoring system was used by the panelists to rate each of the candidates. Scores were assigned to experience (28 points), education (12 points), training (12 points), and interview (48 points) for a total of 100 points per panelist, and for a total of 300 points per candidate. Complainant received a perfect score for experience. However, his scores for education, training, and interview were much lower. Specifically, Complainant's combined score from each panelist for education, training, and interview were 21/31, 18/36, and 69/144, respectively. Complainant's overall ranking in comparison to other candidates was a 5/7.
Further, the AJ noted that Complainant's interview score was ranked sixth out of seven. Many of his answers to the interview questions were insufficient, especially when compared to the answers of the top three candidates. After receiving the panel's recommendations, the selecting official elected to give the top three candidates a second interview. Following the interviews, the selecting official offered the position to a named male candidate but he declined it due to personal reasons. The subject position was then offered to a named male candidate who also declined the position. The subject position was finally accepted by a named male candidate.
With respect to claim 2, the AJ noted that as a Supply Technician, Complainant was responsible monitoring the Distribution Standard System (DDS) for cancellations of Material Release Orders (MRO). When an MRO was placed into the DDS, Complainant was required to cancel the MRO within 24 hours. On August 2, 2010, an MRO appeared in the DDS. The AJ noted that on August 3, 2010, a co-worker notified Complainant via email of an MRO that needed to be cancelled by the end of the current business day, and a second email was sent to Complainant on the same day. The next day, August 4, 2010, the co-worker sent Complainant a follow-up email because the MRO still had not been cancelled. On the same day, Complainant cancelled the MRO, approximately 42 hours after the cancellation had been entered into the DDS.
Due to Complainant's untimeliness on this assignment, he was issued a Notice of Proposed Suspension for five days for a Second Offense of Misconduct citing Complainant's failure to cancel the MRO within the 24 hour timeframe. Complainant's first offense occurred in July 2010, when he received a Letter of Reprimand for failure to perform his duties within the required timeframes. In his response to the Notice of Proposed Suspension, Complainant did not deny that he had not met the timeframe requirements. On September 20, 2010, a Notice of Decision was issued wherein Complainant received a three-day suspension to be served from October 4, 2010 to October 6, 2010. Before Complainant served his three-day suspension, he retired from Agency employment effective September 30, 2010.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of race, sex, age, and reprisal discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination. The AJ further concluded that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The AJ noted that in his affidavit, the Supervisory Distribution Facilities Specialist, also Complainant's second level supervisor (supervisor), stated that in regard to claim 1, he was the selecting official for the position of Supervisory Inventory Management Specialist. The supervisor stated that the Agency has a policy on how the selections for supervisory positions are to be made. Specifically, the supervisor stated that it is a two-tier process which includes interviews conducted by a panel of candidates, and a second set of interviews to be done by the selecting official and his or her first level supervisor.
The supervisor stated that candidates' rankings by the panel were "based on criteria I had given them to identify the qualifications I was looking for. It is my duty, as the selecting official, to establish the criteria to identify the 'best qualified' candidate as those submitted from the certificate have already been identified as 'qualified' for the position." The supervisor noted that the panel identified three top candidates, and his decision to interview the top three candidates was part of "the second tier of the selection process. The Complainant was ranked number 5 by the selection board and so he was not interviewed during the second tier."
The supervisor stated that one of the three top candidates was originally selected but he declined the subject position based on personal reasons. The supervisor stated that he then offered the subject position to a named candidate "who declined because he had been offered and accepted a different position. So, I then offered the position to [candidate] and he accepted."
The supervisor stated that he noted that Complainant "was lacking in leadership training, leadership experience and there was a significant difference in his performance on the interview questions which did not place him in the top three." Furthermore, the supervisor stated that he did not discriminated against Complainant based on his race, sex, and age.
One of the panelists stated that the top three candidates provided detailed responses to the interview questions and also gave good examples on all of the questions. For instance, the panelist stated that during his interview, the selectee "was very detailed and gave good examples and talked about past experience...he talked about communication and the importance of relationships so people could work together. He talks about making a plan. He gave examples of special projects and the importance of setting up processes...he described his leadership style and talked about keeping calm and building morale and how important demeanor is."
The panelists stated, however, Complainant "did not give examples. He did not seem prepared for the interview and gave very short answers with no details or information on what he would do to accomplish the tasks."
With respect to claim 2, the supervisor stated that the new Supervisory Distribution Facilities Specialist issued Complainant the proposed suspension based on Complainant's failure "to carry out his duties in a reasonable time. This was a second offense of misconduct. Our organization (MEO) was a contract organization and we had specific contractual responsibilities identified in a Letter of Obligation which states, among other things, that inventory cancellations have to be accomplished within 24 hours of receipt."
Further, the supervisor stated that it was Complainant's responsibility "to run a report that showing what, if any cancellations need to be done and when the requests for cancellations were entered into the system...he was not running the reports. [A named system analyst] was running the reports and telling him/emailing him notifying him of what needed to be done." The supervisor stated that he learned of Complainant's misconduct when he received a non-conformance report from the system analyst "identifying the action as incomplete and I was copied on the emails sent to the Complainant to complete the action."
The supervisor stated that he decided Complainant's penalty "based on the facts presented. The action proposed was a five day suspension which I mitigated to three days based on his years of service."
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, 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. While complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute requiring resolution through a hearing.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's conclusion that responsible management official articulated legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, was a pretext masking discrimination.
The Agency's final action implementing the AJ's decision, finding no discrimination was proven, is AFFIRMED.
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
March 16, 2015
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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