0120131631
09-10-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131631
Hearing No. 560-2011-00156X
Agency No. ARCEK10JUL03250
DECISION
On March 9, 2013, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 1, 2013, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Master Towboat Operator, XH-9, with the Agency's US Army Corps of Engineers in St. Louis, Missouri. He worked on the Mississippi River.
On September 9, 2010, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his age (65) when:
1. He was not selected for the position of Towboat Operator, XH-8, with the US Army Engineer District, Missouri River Area Office, Gasconade Project Office in Missouri, which he applied for under job announcement number WTGH09662882, for status candidates (this announcement opened and closed in September 2009).1
2. On July 20, 2010, he discovered by checking the RESUMIX database that he was not selected for the position of Towboat Operator, XH-9, with the US Army Engineer District, Missouri River Office, choice of Gasconade or Napoleon Project Offices in Missouri, which he applied for under job announcement WTGH10098179 (which opened in March 2010 and closed in April 2010).
3. He was not interviewed, drug tested, nor notified by the selecting official of his non-selection, and the selection process, the addition of the location choice of Napoleon, and who was selected indicated discrimination.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant 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 Agency found no discrimination on issues 2 and 3. It found that to the extent Complainant alleged issue 1 as a separate claim, it was dismissed for being untimely counseled.
Issue 2
Complainant applied for the position and was deemed qualified. In terms of water related experience, in his application he indicated that he worked in various capacities for the US Army of Engineers since June 1988. He was a Fireman-Watertender/Dredge Porter until June 1994, then an assistant in an engine room of a self-propelled dredge to July 2000. In July 2000 he became a Deckhand working to qualify for a master of towing license - a towboat license was a requirement of the Towboat Operator position. Thereafter, he served as a Deck Leader, and in July 2007 was promoted to Master Tender, XF-07, and then to Master, XF-9, in September 2008. A Master is equivalent to the Officer in Charge (OIC) position the selectee held in the military. Report of Investigation (ROI) Transcript (Transcript), at 57.2 Much or all of Complainant's experience on vessels was on the Mississippi River, including towboats starting by July 2000.
In his application the selectee indicated that he worked with the US Coast Guard as an Executive Petty Officer from May 1995 to July 1997, serving as a Buoy Deck Supervisor, Small Boat Coxawain, and Deck Watch Supervisor responsible for navigating a towboat on rivers, among other tasks. He was the OIC of vessels in various locations for the US Coast Guard from August 1997 to November 2009. This included an Aids to Navigation Boat towing other boats from August 1997 to May 2001; navigating a towboat on the Mississippi River from May 2001 to July 2005, and navigating another towboat on the Missouri River from July 2005 to August 2009. The job on the Missouri River included managing the Federal Aids to Navigation System on 506 miles of the volatile and ever changing Missouri River, including over 900 buoys and structures. The selectee wrote in his resume that by May 1984 he earned 14 semester hours in the Coast Guard's Boatswain Mate Class "A" School.
The first (S1) and second line supervisors over the Towboat Operator position in question were involved in the selection decision - both rating candidates and the later serving as the selecting official (SO). There were 11 qualified candidates on the status certificate, including Complainant, which was used to make the selection decision. S1 rated the selectee in 1st place and Complainant 4th, and SO rated the selectee in 1st place and Complainant 5th.
S1 and SO independently rated the candidates using their own rating criterions. S1 looked for experience on the Missouri River, and related that he rated the selectee number 1 based on his experience thereon -- his running a towboat on the Missouri River and putting buoys thereon -- and anyone else would have to be taught the river with a big learning curve when coming from a different river. ROI, at 12 (ROI page numbers refer to the bolded numbers at the bottom center of each page); Transcript, 68, 82 - 84. Complainant conceded that the selectee's resume showed that he was highly qualified and outstanding, and that he worked on the same stretch of river as the contested job in question, which was "a great thing." Transcript, 35, 41, and 58.
But Complainant stated that around 2008, his former supervisor on the Mississippi was selected for the same Agency position of Towboat Captain on the Missouri River, and was doing fine. He expressed that like everyone he worked around he thought his former supervisor was less than 50. S1 countered that after the above individual was hired he had a learning curve, and for the first year his boat was mate to another boat - he did not get to push by himself. S1 stated he knew the above person was in his 60s. Transcript, 63, 93, 95. Complainant acknowledged that the one time he pushed a dredge up the Missouri River a Missouri River pilot was used because the pilot knew the area and that is "smart business." Transcript, 85 - 86.
SO wrote that he used the following criteria in rating candidates: (1) do they have a Coast Guard Towboat operations license, (2) what experience do they have as a Towboat Operator, (3) what experience do they have on the Missouri River, (4) input from current supervisor or references, and (5) miscellaneous items such as awards, specialized education, status upon departure from the military, etc. He stated that he preferred the selectee over Complainant because of the former's experience on the Missouri River. He explained that there was a significant difference between working on a pooled river like the Mississippi with locks and dams and the free flowing Missouri River. SO stated that the selectee had good knowledge of the Missouri River from operating towboats thereon, placing buoys, checking channel conditions, fixing navigation aids along the bank of the river, and working in and around structures on the river. All this is reflected in the selectee's resume, which was more detailed than Complainant's. The selecting official stated that while he was not saying Complainant could not do the job, there was value in getting a candidate that knows the river. He previously relayed to the EEO counselor that someone new to the river would need two or three years of training as an apprentice under an actual pilot. ROI, at 15.
In its FAD, the Agency found that Complainant made out a prima facie case of age discrimination -- he was in the protected class of age, applied for and was qualified for the position, and a person substantially younger was selected. It found that the Agency gave reasonable and nondiscriminatory reasons for its decision -- the selectee was better qualified given his experience on and knowledge of the Missouri River. The Agency found that Complainant failed to show that its explanation for the selection decision was pretext to mask discrimination. It found that Complainant did not show that his assessment that he was better qualified than the selectee because he allegedly had 20 years more experience, worked on the crowded Mississippi River, and so forth showed that the Agency's assessment that the selectee was better qualified was pretext. It added that it was not clear from the record what 20 years of additional relevant experience Complainant possessed.
The Agency also found that Complainant failed to show that previously advertising the same position slot (issue 1), which resulted in choosing of the same selectee and an alternate candidate, who both declined the position, the former because of the location, and reposting the same position (issue 2) with a choice of two locations showed pretext based on age.
The Agency found that the first selection decision was made by permanent predecessor of SO (different selecting officials) and the position was re-advertised because the selectee and the alternate turned down their offers. The SO wrote that he was told by his acting predecessor that the selectee declined the first offer because of the duty station, and was told no other candidates were considered qualified so no selection was made. ROI, at 99. Complainant argued this evidenced pretext since he was qualified. The Agency found that a fair reading of things was not that management indicated Complainant was unqualified, rather it wanted to re-advertise the position with the choice of two locations on the Missouri River to expand the applicant pool. It also found that re-advertising and adding of a choice of a second location was not done to favor the selectee nor discriminate against Complainant based on his age.
Issue 3
The selecting official stated that he did not notify any candidates he rejected for selection, and only sent the selectee for drug testing. He explained that as far as he knew rejected applicants found out by Resumix or word of mouth, and he only sends people for drug tests who are selected. Transcript, 67, 120 - 121, 126. An Agency Human Resources Specialist stated that candidates could check on their status using the Resumix ANSWER system, which she kept up to date in this case. Transcript, 158 - 159; ROI, 201. The Agency found no discrimination on this matter.
Issue 1
In dismissing issue 1 for failure to timely initiate EEO counseling, the Agency reasoned that Complainant initiated EEO counseling on July 21, 2010, more than 45 calendar days after the Resumix ANSWER system was updated on October 7, 2009, to reflect that the recruitment action under the vacancy announcement Complainant applied had been cancelled with no selection made. The Agency also found that by March or April 2010, Complainant applied for the same position again under Vacancy Announcement WTGH10098179, which indicated he was aware no selection was made under the earlier announcement. The Agency addressed Complainant's argument that he did not form a reasonable suspicion of discrimination until he learned the same selectee declined his first offer but accepted the second offer after an alternative duty location was added, and reading in the EEO counselor's report that the SO stated management needed to re-advertise the position because only the selectee was qualified. The Agency found that Complainant was aware that an alternate duty location was added when he applied again in March or April 2010, and that he stated that he heard from contacts within the Agency at an unidentified time that something was amiss with the selection.
ANALYSIS AND FINDINGS
Issue 2
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 or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We agree with the Agency that Complainant established a prima facie case of discrimination regarding his non-selection. We also agree that it articulated a legitimate, nondiscriminatory reason for choosing the selectee - it believed he was better qualified based on his experience on and knowledge of the Missouri River.
Complainant has not proved pretext. While he views himself as better qualified than the selectee, he has not shown that the Agency's assessment otherwise was pretext to mask discrimination. Complainant himself acknowledged that the selectee was an outstanding candidate. The Agency explained that if Complainant was chosen, he would not be ready to independently pilot a towboat on the Missouri River for at least a year.
Complainant argues that the Agency's decision to re-advertise the position rather than choose him after it was first advertised evidences pretext. He notes that while he was qualified, the SO wrote that it was his understanding that no other candidates were considered qualified.
The SO's permanent predecessor, who made the first selection decision, departed by December 2009. He was temporarily succeeded by an Acting Area Engineer from December 21, 2009, though February 27, 2010. The SO succeeded the Acting Area Engineer on March 1, 2010.
By October 7, 2009, the status candidate recruitment action under which Complainant applied (issue 1) was cancelled, with no selection made. ROI, 116, 201. This was long before the SO came onto the scene. The Acting Area Engineer stated that this recruitment action was cancelled because both the selectee and alternate declined the position. ROI, 240. For some reason, the parallel vacancy announcement (with the same opening and closing dates as the announcement in issue 1), which was targeted to the general public, not status candidates, was not cancelled until around March 5, 2010. ROI, 126. Complainant did not apply using the parallel announcement. ROI, 201.
The SO relayed that after he was selected and before he succeeded the Acting Area Engineer, they met to work on a transition plan. The SO wrote that he learned in this meeting that after the selectee declined no other candidates were considered qualified so no alternate selection was made, and the selection process was not completed. The SO asked the Acting Area Engineer to complete the personnel action - which he did by the closing of the parallel vacancy announcement. ROI, 99, 126. The SO stated that at the time he did not know the selectee, and he did not know Complainant was on the referral list connected to the first announcement. Transcript, 104, 143 - 144. The Acting Area Engineer stated that he did not recall telling the SO that referral list for status candidates was lacking in qualified candidates. ROI, at 240.
In deciding to re-advertise the position, the record does not show that the SO was targeting Complainant based on his age. The referral list Complainant was on was cancelled prior to the SO arriving. Further, the SO's understanding, based on what he believed he was told by the Acting Area Engineer that no other qualified candidates were considered qualified in connection with the first recruitment, was also not targeted at Complainant -- the SO did not know he was on the referral list. Further, assuming the Acting Area Engineer advised the SO that no other candidates were considered qualified in connection with the first recruitment, this may have been a reference to the parallel public directed vacancy announcement and connected referral list which Complainant did not apply -- by the time of the discussion, the status vacancy announcement recruitment action had long been closed, and the parallel vacancy announcement recruitment action for the public had not yet closed.
The Acting Area Engineer, S1, and the SO uniformly stated that the addition of a choice of a second location in the second announcement was not targeted at hiring the selectee. ROI, 241, Transcript, 87, 113, 121. It was to broaden the pool of candidates. S1 questioned how they would have known the selectee would apply a second time. Transcript, 87.3
Complainant has not proven pretext or otherwise proven discrimination.
Issue 3
Complainant conceded that his not being notified by the selecting official of his non-selection was not discriminatory because other rejected candidates were not so notified. Transcript, 18. This is supported by the record. Further, the record shows that the selecting official only sends selectees for drug testing. Complainant has failed to prove age discrimination on issue 3.
Issue 1
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1). The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. Howard v. Department of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
Complainant stated that after he applied, he got notice that he was designated as qualified. Transcript, 16 - 17. He stated that at some point he heard the announcement was closed, and questioned that, but did not think much of it since sometimes announcements have been reopened. Transcript, 15. An inquiry by Complainant shows he did not know by May 13, 2010, that a selection had been made under the second recruitment action. ROI, 204. But he stated sometime prior to initiating EEO counseling on July 21, 2010, friends in the Agency informed him that the same person had been selected twice, and that raised eyebrows. Transcript, 18 - 19.
We find that Complainant should have formed a reasonable suspicion of discrimination by March or April 2010. He applied for the job in September 2009, and learned thereafter he was deemed qualified. He learned by March or April 2010, when the job was re-announced, that he had not been selected pursuant to the first vacancy announcement. Complainant considered himself to be highly qualified, and stated it seemed everyone he worked with at the Agency was under age 50. We find that Complainant formed a reasonable suspicion of discrimination when he learned he was not selected - March or April 2010.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. signature
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2015
__________________
Date
1 The Agency defined issue 1 as being in support of issues 2 and 3. In a declaration the EEO investigator wrote that prior to the on-site investigation he called the Agency Acting EEO Officer and was advised that the claim was found to be untimely raised. On appeal, both parties indicate that the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) ruled issue 1 was untimely. The Agency writes that the AJ found that the Agency dismissed issue 1 for being untimely, and ruled that it would not "be added to this complaint as a discrete action, but will be considered background information pertinent to the accepted" claim.
2 Page references to the transcript refer to transcript page numbers, not investigation or bate stamp page numbers.
3 In fact, at the time of the fact-finding conference in January 2011, the selectee had not chosen the location of his permanent duty station. Transcript, 122. On appeal, Complainant submitted the counselor's report on a subsequent complaint he filed. According to the EEO counselor, the SO relayed that the selectee informed him in August 2011, that he was leaving due to family issues caused by a geography problem -- his family was in Omaha.
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