0120133151
09-25-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120133151
Agency No. ATF-2011-00034
DECISION
Complainant filed an appeal from the Agency's August 6, 2013 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industry Operations Investigator, GS-13, at the Agency's Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), in Little Rock, Arkansas.
On January 16, 2011, Complainant filed an EEO complaint. He alleged that the Agency discriminated against him and subjected him to a hostile environment, on the bases of race (Caucasian), sex (male), and in reprisal for prior EEO activity. Specifically, he alleged that, twice, the Agency did not select him for the position of Supervisory Industry Operations Investigator and his supervisor harassed him when he lowered Complainant's Fiscal Year 2010 performance rating and denied him training.
The pertinent evidence shows the following information. Complainant has worked at the ATF since 2004 as a GS-1801-13 Industry Operations Investigator. At the time of the issues at issue, Complainant reported to the Director of Industry Operations (Caucasian) (S1). S1 reported to the Special Agent-in-Charge (S2).
S1 became Complainant's supervisor in 2010. Before that, S1 had been the "acting Executive Director of the EEO office of ATF." He was directly involved in Complainant's prior EEO complaint. Complainant had filed a previous EEO complaint, which was closed in May of 2009. Complainant states that his EEO activity resulted in the removal and relocation of the former Director of Industry Operations and the detail of S1, in February 2010, to act as the area supervisor in Little Rock because of the EEO activities of five people in the Little Rock, Arkansas office.
The Little Rock office falls under the New Orleans Field Division. Complainant's Declaration, Report of Investigation (ROI), 497. The Little Rock Office had been the subject of previous management problems and strife.
Claim 1 Cancellation of Announcement 10-MER-155-GWH / Non-selection
The Agency announced a vacancy for the position of Supervisory Industry Operations Investigator. The position was open from February 7, 2010 to March 9, 2010. The record shows that, on March 10, 2010, Complainant applied for the position. His application was accepted. He accessed his online account and confirmed that he was listed on the "Best Qualified List." All four of the listed qualified candidates, including Complainant, were internal candidates and were Caucasian.
The Agency did not interview or select anyone for this vacancy announcement.
After Complainant learned that he was on the Best Qualified List, Complainant sent a series of inquiries, by email, asking the Human Resources (HR) contact person listed in the announcement about the status of his application. Complainant sent e-mails to HR on March 22, March 23, March 26 and April 7, 2010.
On or around April 12, 2010, HR returned his inquiries to say the vacancy had been cancelled. Complainant then contacted the S2. Complainant said S2 "expressed his surprise about the cancellation and stated that he had no knowledge of it."
On April 15, 2010, S2 called Complainant and told him that S1 had noticed that there was no "move money" associated with the announcement and contacted headquarters to have the announcement cancelled. ROI, Ex. F2 at 3. S2 told Complainant that reimbursement of moving expenses was a requirement that "must be included with the announcement." S2 stated that the position announcement (10-MER-155-GWH) was cancelled because it was "advertised incorrectly." ROI Ex. F10.
After Complainant continued to press for a written explanation of the status of the vacancy, he was told that no selection had been made. The HR contact conveyed that management said that "there was no selection made from this announcement. The announcement is not canceled."
On April 16, 2010, Complainant and another employee participated in a conference call. During a conference call, Complainant alleges that either S1 or another management official said that "headquarters did not want anyone from Little Rock to get the job." S2 later confided his belief that "recent Freedom of Information Act (FOIA) requests that [Complainant] and [the other named employee] had recently independently filed 'made them uneasy' at headquarters." S2 told Complainant that the position would be re-advertised and that "it would be best if [complainant and the other named employee] would "lay low" and not file any more FOIA requests.
Complainant believed that nobody was selected (or the announcement was cancelled, or not acted on), because of retaliatory animus towards him. Complainant believes that management "did not want any of the applicants to have the position," so they removed the posting. The job was later reposted.
Complainant did research, which led him to conclude that an announcement should not be canceled after the Best Qualified list has been complied. He maintained that Agency policy, set forth at ATF Order 2311A, required the Agency to first convene a Merit Promotion Board (MPB). ROI Ex. F2 at 5.
Claim 2 Non-selection for second announcement 10-MER-314-GWH
The position was re-announced. On June 22, 2010, Complainant applied for the position of Supervisory Industry Operations Investigator under vacancy announcement 10-MER-314-GWH. Complainant stated that he was included on the "Best Qualified" list of applicants.
The Agency convened a panel. The panel members averred that they were unaware of Complainant's race or prior EEO activity.
The interviewing panel included the Field Operations Program Manager, the Baltimore Field Office Supervisor, the Advanced Firearms and Operations Division Deputy Chief and the Explosives Industry Division Deputy Chief. ROI, F2 at 25-26.
On July 21, 2010, management officials interviewed Complainant telephonically. The interview lasted an hour. Complainant felt he had done very well.
On July 23, 2010, Complainant learned that he had not been selected for the position.
After comparing interview questions with another candidate who was interviewed, Complainant came to the conclusion that the candidates were asked different questions. He also noticed that the wording of the required qualifications had changed from the first time he applied for the position. He believed the new qualifications were scripted to exclude him.
He wrote S2, because he was concerned that S1 had been involved in setting up the selection process in a way that Complainant would not receive the promotion due to his prior EEO activity. S1 and S2 denied this. S2 stated that they both agreed to "recuse" themselves from the selection process.
Complainant claimed he later learned that his status online was listed as "not selected" prior to the interview. Therefore, Complainant suspected pre-selection. Complainant asked for the selection process to be suspended. He was told that the process had already been completed.
Complainant averred that he decided to take his concerns about the improprieties all the way to the top of ATF and he sent an email to the ATF Acting Director on July 26, 2010.
Complainant stated "a black man with less qualification than me was selected." Complainant believed he was better qualified than the selectee because Complainant received an "Exceeds Fully Successful" evaluation while the selectee had a "Fully Successful" evaluation. Complainant acknowledged that the selectee served twenty years in the military.
Complainant also averred that ATF management offered conflicting reasons for suspending the first position announcement and that the eventual selectee was "not an existing supervisor and only had approximately four years of independent ATF experience." He also noted that the second announcement contained the same flaw (no provision for "move money") which was management's stated reason for not selecting from the first announcement.
Management maintained that the selection was based on the panel's recommendation and the panel based its recommendation on the selectee's past work experience and the interview. The panel was in agreement that the selectee gave specific, well thought-out answers during the interview. One of the panel stated, that, in his opinion, the selectee "had substantially more leadership and managerial experience than the other two candidates" and noted that he had served in the U.S. Marine Corps and supervised up to 500 marines. He said this was reflected in the application and during the interview.
Another of the panel members said that the selectee's application packet also supported his selection, because he listed a Bachelor's degree with honors and because his application was free of typographical errors.
In comparison, the panel member stated that Complainant's application had numerous misspelled words and grammatical errors and he was not able to demonstrate significant leadership experience. The panel members uniformly said the interview confirmed that the selectee was the best candidate.
Claim 3 Lowered rating and training
S1 issued Complainant a rating of "Fully Successful" on one of his critical elements, which was the "Interpersonal Skills" element. Complainant asked S1 to reconsider. On November 3, 2010, S1 sent Complainant an email, advising him that he was leaving the performance rating as is.
S1 stated in his affidavit that he did not downgrade complainant's performance rating. He stated that Complainant "earned an overall rating of Exceeds Fully Successful." Ex. F9 at 5. S1 also averred that Complainant "acknowledged and accepted the appraisal without any change in the internal ePerformance data base."
S1 stated that he granted training to two female employees, based on the projected needs of the employees to use the skills. Complainant requested training that S1 did not believe would be useful. S1 also stated that he and S2 tried to schedule a meeting with Complainant to resolve the lingering issues, but Complainant refused to participate.
Agency Decision
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision, pursuant to 29 C.F.R. � 1614.110(b), concluding Complainant failed to prove discrimination and/or unlawful retaliation as alleged.
This appeal followed.
ANALYSIS AND FINDINGS
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 Chapter 9, � VI.A. (Aug. 5, 2015) (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 / Race, Sex and Reprisal
We review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717. Title VII requires that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . race [or] sex." 42 U.S.C. � 2000e-16(a). To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
In addition, a complainant has traditionally established a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she 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).
For purposes of our analysis, we will find that Complainant established his prima facie race claims. He applied for a position, was qualified and the Agency initially cancelled the certificate, and later selected a candidate of a different race who Complainant claims was less qualified. He has not, however established sex discrimination because the person selected was a male.
With regard to the reprisal claim, the record shows Complainant filed a prior EEO complaint in 2009. S1 had been directly involved in that complaint. Complainant applied for a position, was found qualified, but the Agency chose not to select anyone for the first position and selected a person with no prior EEO activity for the second position. S1 also rated him as "Met" for the Interpersonal Relationships element in his performance appraisal, a rating Complainant regarded as negative.
Once a complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific , clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (Jan. 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut).
The Agency found that responsible management had articulated legitimate, nondiscriminatory reasons for its actions. The first vacancy announcement was cancelled because it was incorrectly announced and because they did not want to select any of the internal candidates from the Little Rock area, preferring to bring in someone from outside of the office to address the problems.
With regard to the non-selection for the second position, management states that it selected the individual recommended by the selection panel, whose members were unaware of Complainant's race or prior EEO activity.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Complainant asserts on appeal that the Agency offered inconsistent reasons for cancelling the first vacancy announcement and failure to follow its own rules. However, even if true, without more we do not find it enough to show pretext. While management witnesses raised a technical flaw in the first vacancy announcement as the reason for the cancellation, Complainant correctly noted that the same flaw occurred in the second announcement. The evidence of record indicates that it is more likely than not that management did not want to select an internal candidate, regardless of who that was, and used the technical flaw to solicit a broader range of applicants. Management has the latitude to decide for legitimate reasons to hire from the outside of the office for an office with management issues. The Agency's decision not to select from the first certificate was done ostensibly because management wanted to hire from the outside and only internal candidates appeared on the first best qualified list. That reasoning would eliminate all internal candidates, regardless of race, sex and EEO activity, and not just Complainant.
The Agency's decision to hire the selectee for the second position was based on the panel's recommendation that the selectee was the best qualified. There is no evidence that this was due to Complainant's race or linked to Complainant's prior EEO complaint. The preponderance of the evidence shows that the panel was unaware of Complainant's race or prior EEO activity when the selection was made. Moreover, the record supports the Agency's decision to select the candidate it viewed as having the most management and leadership skills.
Harassment
Finally, to establish a claim of harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Complainant alleged that S1 harassed him when S1 denied some training he requested. He also requested that S1 change his rating and the supervisor refused. The Agency found that Complainant had not shown that any of the alleged incidents were based on unlawful discrimination or his prior EEO activity. Further, the isolated incidents were not sufficiently severe or pervasive. The record supports the Agency's findings.
After a careful review of the record, we find that Complainant did not show by a preponderance of the evidence that he was subjected to a hostile work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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 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 25, 2015
__________________
Date
2
0120133151