Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120123049 (E.E.O.C. Feb. 25, 2015)

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

Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120123049

Hearing No. 420-2012-00496X

Agency Nos. 8I1M11003F12, 8I1M11003

DECISION
On July 24, 2012, Complainant filed an appeal from the Agency’s July 10, 2012, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 791 et seq

. Our review is de novo. 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 Police Officer,
GS-0083-06,at the Agency’s work facility in the 96th

Security Forces Squadron, Eglin Air
Force Base in Florida. On November 4, 2011, Complainant filed an EEO complaint wherein
he claimed that the Agency discriminated against him on the bases of his race (African-
American) and disability when he was not selected for a position as a GS-0083-08, Supervisory
Police Officer on December 10, 2010.
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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment
and issued a decision on June 28, 2012.

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The AJ found that no discrimination occurred. The AJ noted that the Agency sought to fill
three new Supervisory Police Officer positions, GS-0083-08, and the positions were announced
internally and externally. Approximately 34 candidates, including Complainant, were
determined to be qualified and referred for the position by the Human Resources Specialist. A
panel of two members of the military reviewed the candidates’ written application packages.
These candidates were evaluated based on experience, training, education and other factors.
Complainant was ranked first by one panel member and third by the other. Complainant and
two other internal candidates were selected, and the Human Resources Specialist e-mailed
Complainant a tentative job offer. The AJ stated that afterwards the Human Resources
Specialist learned that Complainant occupied a GS-06 permanent position rather than a
National Security Personnel System (NSPS) position as his resume indicated. The Human
Resources Specialist subsequently rescinded the tentative job offer because permanent GS-6
candidates are generally ineligible for GS-8 positions as they do not have the required time-in-
grade at the GS-7 level. The Human Resources Specialist coded Complainant and seven other
permanent GS-6 candidates as ineligible due to time-in-grade, removing them from
consideration for the positions.

The Human Resources Specialist subsequently learned that the facility did not have any GS-7
police officer positions and as a result she did not have to remove permanent GS-06 candidates
from the certificates. A decision was made to re-announce the position so that Complainant
and other GS-06 employees could reapply. The Human Resources Specialist notified
Complainant of the developments and encouraged him to reapply. Complainant did not
reapply for the position. Two internal candidates were appointed to the Supervisory Police
Officer positions.

One selectee (Caucasian, service-connected disability) had served as a Supervisory Security
Guard since 2008. When the NSPS was repealed, his position was reclassified as a GS-0085-
7 in September 2010. The other selectee (Caucasian, service-connected disability) had
occupied a term Security Guard position, GS-0085-05, not to exceed November 21, 2011.
Term positions were excluded from the time-in-grade requirements. The AJ noted that the
Human Resources Specialist stated that she was unaware of Complainant’s race or that he had
a disability at the time she determined that he lacked the time-in-grade for the promotion.
Based on the AJ’s finding that the Human Resources Specialist had no knowledge of
Complainant’s race and disability, the AJ found that Complainant failed to establish a prima
facie case of race and disability discrimination.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that his job offer was the only offer that was rescinded.
Complainant claims that he qualified for the position regardless of his time-in-grade due to his
service connected disability. Nevertheless, Complainant maintains that he qualified for the
0120123049

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position at the GS-07 level for time-in-grade. According to Complainant, he had an adequate
amount of time in position as a police service supervisor while working with the Navy along
with his time with the Agency as a Military Police Officer Supervisor. Complainant further
claims that the Chief was aware of his race and that he made the selections rather than the
Human Resources Specialist. According to Complainant, the Agency knew or should have
known at the time it rescinded its offer and reposted the position that he qualified regardless of
his time-in-grade status. Complainant challenges the process where the job was reposted and
he was neither considered for nor offered the position, despite the fact that his qualifications
were incorrectly determined to disqualify him for the position.

In response, the Agency asserts that one of the other candidates initially selected for the
position at issue besides Complainant was a Caucasian without a disability, and that she was
also removed from the certificate and not offered the position. The Agency states that she
lacked sufficient time-in-grade to qualify for the position since she was a GS-0083-06.
According to the Agency, the Human Resources Specialist thought that permanent GS-06
candidates were generally ineligible for the GS-08 position because they lacked the required
time-in-grade at the GS-07 level. The Agency states that the Human Resources Specialist
rescinded Complainant’s tentative job offer given that as of March 28, 2010, Complainant was
occupying a GS-0083-06 position rather than the NSPS position his resume indicated. The
Agency asserts that Complainant is unjustifiably requesting that the Commission overlook the
fact that the Human Resources Specialist, rather than management, rescinded the job offer and
that the Human Resources Specialist was unaware of Complainant’s race and disability when
she rescinded the offer.

The Agency maintains that Complainant was not similarly situated to either of the two
selectees. According to the Agency, neither of the selectees lacked sufficient time-in-grade for
the GS-08 positions they were offered. The Agency points out that both of these selectees
were disabled veterans. The Agency asserts that Complainant failed to establish a prima facie
case of race and disability discrimination, but that even if he did, Complainant failed to prove
that the Agency’s articulated non-discriminatory reason was pretext for discrimination. The
Agency states that the tentative job offer was withdrawn based on an administrative error
committed by the Human Resources Specialist, specifically that she believed the time-in-grade
rules prohibited Complainant’s selection. The Agency counters that Complainant’s argument
that he had sufficient time-in-grade as a GS-07 because of his military service lacks merit. The
Agency states that 5 C.F.R. § 300.605 provides that military service is not credible service for
purposes of time-in-grade. As for Complainant’s argument that he could have been offered the
position under his disabled veteran status, the Agency maintains that its decision not to exercise
its discretion for the placement of veterans with disabilities does not constitute discrimination.
The Agency points out that no other candidate was appointed using that special authority,
including one of the selectees who also had a 30% service-connected disability.

With regard to Complainant’s claim that the Agency should have sent him another offer after
the Human Resources Specialist realized her mistake, the Agency states that the re-
announcement of the position was not intended to remove Complainant from consideration for
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the position or treat him any differently than similarly situated employees. According to the
Agency, the Human Resources Specialist was instructed by her supervisor, who also was
unaware of Complainant’s race or disability, to re-announce the position so that all permanent
GS-06 employees deemed ineligible could reapply. The Agency maintains that Complainant
was informed of the proposed solution and instructed to reapply to be considered for the
position, but he did not reapply. The Agency asserts that Complainant’s non-selection was a
combination of administrative error and his failure to reapply.

ANALYSIS AND FINDINGS
We shall assume arguendo that Complainant set forth a prima facie case of race and disability
discrimination with regard to his nonselection. The Agency explains that Complainant,
although he was initially presented with a tentative job offer for the Supervisory Police Officer
position, did not receive the position due to an administrative error and his subsequent failure
to reapply for the position. The Agency asserts that the Human Resources Specialist was
unaware that there were no GS-07 police officer positions at the facility and therefore she was
not required to remove permanent GS-06 candidates from the selection certificate. According
to the Agency, until she realized her mistake, the Human Resources Specialist believed that
Complainant was ineligible for the GS-08 position due to a lack of time-in-grade at the GS-07
level. The Agency states Complainant was offered the opportunity to reapply for the position
but failed to do so. We find that the Agency has articulated legitimate, nondiscriminatory
reasons for Complainant’s non-selection.

Complainant challenges the Agency’s assertion that it was unaware that he qualified for the
Supervisory Police Officer position at the time that the job offer was rescinded. Although we
recognize Complainant’s legitimate concern on this point, he has not established that the
Human Resources Specialist fabricated her version of the relevant events. The administrative
error committed by the Human Resources Specialist appears to have been a mistake rather than
an action attributable to discriminatory motivation. We observe that another initial selectee
who did not receive final approval because she was believed to lack time-in-grade at the GS-07
level was Caucasian and not disabled. We discern no discriminatory purpose in the
administrative error that caused Complainant’s tentative job offer to be rescinded. The Agency
attempted to rectify the situation by re-announcing the position, and Complainant was notified
this would occur and he was encouraged to reapply. Complainant did not pursue this
opportunity and we discern no persuasive argument or evidence that discriminatory motivation
would have precluded consideration of him for the position. Upon review of the entire record,
we find that Complainant has failed to establish that the Agency’s explanation for his non-
selection was pretext intended to hide discriminatory intent.

CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.

0120123049

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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.

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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

Date
February 25, 2015