0120131784
05-22-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120131784
Agency No. 11-67004-01158A
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 1, 2013 final decision 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.
BACKGROUND
During the period at issue, Complainant was employed as a Material Handler, WG-6907, Level 5, at the Agency's Publication Section of the Storage Maintenance Branch, at the Agency's Marine Corps Logistics Base, Albany Georgia (MCLB-Albany).
In June 2010, the Agency entered into a settlement agreement of a class complaint allowing certain class members the ability to file individual claims of race (African-American) discrimination in the merit staffing promotion process that would have normally been untimely under the requisite 45-day limitation period for making EEO Counselor contact. In October 2010, Complainant initiated EEO Counselor contact, pursuant to a notice sent to all class members, including Complainant, regarding the subject settlement agreement.
On July 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was not selected for several job vacancies. At that time, Complainant did not identify any positions for his alleged non-selection. On July 14, 2011, the Agency acknowledged Complainant's formal complaint. Because Complainant did not provide the specific positions for alleged non-selections, the Agency accepted all 173 positions identified in the computer generated list of searches conducted by the Agency's automated resume search software RESUMIX.
On November 27, 2012, the Agency corrected what it determined were erroneously accepted additional claims. The Agency issued an Amended Notice of Acceptance identifying eighteen positions for which Complainant claimed discrimination. Specifically, the Agency found that Complainant had claimed that he was not referred, considered or selected for eighteen positions, including: Supervisory Quality Assurance (QA) Specialist, GS-1901-12; QA Specialist, GS-1910-09 and GS-1910-11; Tool and Parts Attendant, WG-6904-06; Materials Handler Supervisor, WS-6907-04; QA Specialist, GS-1910-07; Lead QA Specialist, GS-1910-12; and Materials Handler, WG-6907-06, at the Activity between September 29, 2003 and February 20, 2008.
The record reflects that for seven of the eighteen positions at issue, Complainant was not listed on the Resume Match Lists, tracking sheets, and/or referral certificates. These positions included QA Specialist, GS-1910-12 (Requisition #MR161761); Tool and Parts Attendant, WG-6904-06 (Requisition #MR185181 and MR250259); QA Specialist, GS-1910-11 (Requisition #MR268597); QA Specialist, GS-1910-11 (Requisition #MR269711-C, MR269711-C-S1); and Lead QA Specialist, GS-1910-12 (Requisition #MR287751-C).
The record further reflects ten positions for which Complainant was tracked or referred, but not selected: QA Specialist, GS-1910-09 and GS-1910-11 (Requisition #MR167636); QA Specialist, GS-1910-12 (Requisition #MR184590); Tool and Parts Attendant, WG-6904-06 (Requisition #MR1949956, MR221897); Materials Handler Supervisor, WS-6907-04 (Requisition #MR253951); QA Specialist, GS-1910-07 (Requisition #MR267077); Materials Handler, WG-6907-06 (Requisition #MR593069); Materials Handler, WG-6907-06 (Requisition #MR774795-C); and Materials Handler, WG-6907-06 (Requisition #MR908828-C).
Complainant was selected for the position of Tool and Parts Attendant (temporary promotion not to exceed one year), WG-6904-06 (Requisition #MR194956), effective June 13, 2004. Complainant, however, declined the subject Tool and Parts Attendant position on August 12, 2004.
After the investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 1, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of race. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The record reflects that the Lead Human Resources Specialist (Specialist) explained that RESUMIX operated by reading, identifying, and extracting skills from work experiences listed in applicants' resumes, and comparing them to the skill requirements of the positions to produce a list of potentially qualified applicants. The Specialist also stated that resumes were still reviewed by staffing specialists to make sure that applicants who matched the desired skills actually met the qualifications and eligibility requirements for the position.
Further, the Specialist stated if an applicant's name was not on the match list, it meant that the automated system found that he or she did not match the skills needed for the vacancy, and/or that he or she did not match the other required search criteria used in extracting the resumes for the vacancy such as pay plan series, grade level, geographic location, and appointment eligibility.
Regarding the two QA Specialist positions, the record reflects that Complainant was matched and tracked for the following positions: QA Specialist, GS-1910-09 and GS-1910-11 (Requisition #MR167636) and QA Specialist, GS-1910-12 (Requisition #MR184590), but he was not referred for the subject positions. Two selectees (both Caucasian) were selected for the subject positions on December 28, 2003 and March 21, 2004.
With respect to Tool and Parts Attendant positions, Complainant was temporarily promoted, not to exceed one year, into one of the subject position (Requisition #MR1949956). As for the second position under Requisition #MR221897, Complainant was matched, tracked and referred for the subject position. However, because the potential selectees declined the offer, no selection was made. The record reflects that Complainant was among those who declined the subject position. In her affidavit, the former secretary stated she does not recall Complainant or the specific referral certificate for the Tool and Parts Attendant position but verified that it was her signature on the "Record of Verbal Declination" that recorded the fact Complainant declined the subject position.
Regarding the Materials Handler Supervisor, WS-6907-04 position, (Requisition #MR253951), the record reflects that the Human Resources Branch Supervisor (African American) stated that Complainant was not tracked for the subject position because his resume did not include experience with the skills "Nuclear, Biological, Chemical Defense (NBC/NBCD) which were required for the vacancy." This vacancy was eventually cancelled without a selection.
Regarding the QA Specialist, GS-1910-11 position (Requisition #MR269711), Complainant was not referred to the selecting officials for the subject position because his application materials did not show he had the required specialized experience.
Regarding the Materials Handler, WG-6907-06 position (Requisition #MR593069), Complainant was tracked, matched, and referred as a non-competitive candidate for the subject position. The record reflects, however, the selectee, also an African-American, received the highest summary score while Complainant ranked fourth out of twenty candidates.
Regarding the Material Handler, WG-6907-06 position (Requisition #MR774795-C), Complainant was matched, tracked and referred as a non-competitive candidate for the subject position. The Metrology Branch Manager stated that he was the selecting official for the subject position. Specifically, the selecting official stated that the selectee (Caucasian) was best qualified, and Complainant would have been selected for the subject position if the selectee had declined the offer. The selecting official stated "the email dated 14 January 2008 from me directed HRO to extend the offer to the next candidate if [selectee] could not take the job. The next candidate would have been [Complainant]."
Regarding the Materials Handler, WG-6907-06 position (Requisition #MR908828-C), Complainant was tracked, matched and referred for the subject position. However, on or about March 13, 2008, Complainant declined the position.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 22, 2015
__________________
Date
2
0120131784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131784
7
0120131784