0120132475
07-15-2015
Complainant v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132475
Hearing No. 520-2011-00344X
Agency No. 09-66604-02725
DECISION
Complainant filed an appeal from the Agency's June 3, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the conclusion of the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) that Complainant did not prove that he was subjected to sex discrimination when the Agency did not select him for a promotion to NT-1102-5 Administrative/Technical Specialist.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a NT-1102-04 Administrative/Technical Specialist in Code 11912 at the Naval Undersea Warfare Center Division in Newport, Rhode Island (NUWCDIVNPT). In this position, Complainant primarily was responsible for procurement and contracts for the Agency. Complainant has worked in this position since 1994. Complainant was supervised by the Supervisory Administrative/Technical Specialist (S1). The Contracts Division Head was Complainant's second-level supervisor (S2).
Complainant applied for a promotion in the contracting division for the position of NT-1102-05 Administrative/Technical Specialist. The Agency deemed Complainant and six other applicants eligible and best-qualified for the position. These seven listed best-qualified candidates either applied for the position for which Complainant applied, or another companion position for which Complainant did not apply.
S1 was the selecting official for the position. A selection panel consisting of S1, S2, another Supervisory Administrative/Technical Specialist, and the Deputy Department Head interviewed the best-qualified applicants. Only six applicants, including Complainant, were interviewed because one candidate declined to be interviewed. The applicants were asked the same nine questions during interviews.
The selection panel determined that there were three top candidates, consisting of two females and one male. The male applicant did not apply for the same position as Complainant, but applied for another position (NPT-08-099) that was considered along with the position for which Complainant applied. The top candidate, a female, was offered the position for which Complainant applied, but she declined the offer. The position was then offered to another female candidate, who accepted it. The male candidate was offered the other position.
On September 14, 2009, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of sex (male) when it did not select him for a promotion to the position of NT-1102-04 Administrative/Technical Specialist, advertised under vacancy announcement number NPT-08-100.
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 AJ. Complainant timely requested a hearing, which the AJ held on December 19, 2012, and March 22, 2013.
AJ's Decision
On April 4, 2013, the AJ issued a bench decision. In the decision, the AJ found that Complainant did not prove that the Agency discriminated against him on the basis of sex because he did not show that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The AJ found that the Agency's witnesses testified credibly about the reasons for not selecting Complainant, as reflected in their demeanor. The AJ further found that Complainant's testimony regarding why he was more qualified than the selectee lacked credibility. The Agency subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his argument that he is better qualified for the position than the selectee. Complainant maintains that the knowledge, kills, and abilities (KSAs) criteria for the position did not include any requirement for mentoring experience or customer interactions, and that the promotion announcement only identified education and Defense Acquisition Workforce Improvement Act (DAWIA) certification as quality ranking factors. The AJ does not present any arguments on appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant contends that the Agency failed to include age as a basis for his claim. However, we note that age was not cited as a basis in Complainant's formal complaint. In a letter of acknowledgment of claims to Complainant dated October 7, 2009, the Agency characterized this complaint as alleging only sex discrimination, and stated that if Complainant objected to the Agency's characterization of his claim, he had to notify the Agency in writing within seven days of receipt of the letter. Complainant did not respond to this notice. Moreover, at the hearing, Complainant affirmed that his complaint alleged only sex discrimination. Hearing Transcript (HT), p. 5. Thus, we find that the AJ did not err when she addressed only Complainant's allegation of sex discrimination.
In order to prevail on 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, Complainant is male. Complainant applied for a promotion for which the Agency deemed him qualified. Complainant was not selected, but a female applicant was selected. Thus, we find that Complainant established a prima facie case of sex discrimination.
We further find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, S1 testified that the selectee was chosen for the position instead of Complainant because she had broader and better relevant experience in agency announcements, small business research programs, hardware contracting, cooperative agreements, and Seaport contracts. S1 testified that she has worked with both Complainant and the selectee for several years. S1 further testified that, although Complainant had more education than the selectee, this factor did not outweigh other considerations. S1 also testified that, during the interview, the selectee persuaded her that she had better communication skills by clearly articulating her points.
S1 further testified that she has been involved in procurement with Complainant wherein issues came up, including a customer who was not happy with the speed of the procurement. She stated that, after the contract was awarded, the customer rated Complainant's service as marginal, but once S1 became involved, the customer rated the service as very good. S1 also testified that the selectee demonstrated that she had been providing advice and guidance to junior contracting officers, whereas Complainant did not indicate that he had such experience. Additionally, S1 testified that the selectee convinced her that she could work more independently than Complainant, partly because S1 had worked with her in the past and observed how she worked independently, whereas S1 had to get involved in Complainant's procurement because of problems. S1 further testified that the selectee had a good working relationship with her customers, whereas she had observed instances wherein Complainant had not been respectful with customers.
In an attempt to prove pretext, Complainant maintains that the position evaluation factors, or KSAs, did not include any requirement for mentoring experience or customer interactions. However, the position at issue is a senior contracting officer position and, as such, it is reasonable that the Agency would seek individuals for this position who would be able to mentor junior contracting officers. Further, the "statement of duties" in the vacancy announcement reveals that the position involves mentoring and providing direction and advice to other contract negotiators. Moreover, the position at issue involves interacting with customers. Therefore, we find it reasonable that applicants' ability to successfully mentor and interact with customers would be considered in the selection process.
Complainant notes that the job vacancy announcement identified education as a quality ranking factor for promotion, and he had more education than the selectee. However, the vacancy announcement stated that personnel who occupied GS-1102 contracting officer positions on or before September 30, 2000, were excluded from educational requirements. This education exclusion applied to the selectee, who qualified for the position through her tenure of GS-1102 experience. Although Complainant had more education than the selectee, this factor does not necessarily outweigh other relevant considerations.
Complainant also points out that S1 gave additional reasons for his non-selection that she did not articulate during the EEO investigation. However, we note that the EEO investigator posed questions to S1 through affidavits instead of live testimony. In contrast, S1's hearing testimony was prompted by rigorous back-and-forth examination and cross-examination. S1 clearly expounded on her reasons for Complainant's non-selection during the hearing, but her hearing testimony does not conflict with the responses she gave during the EEO investigation.
Further, we find that Complainant did not show that his qualifications for the position were plainly superior to the selectees' qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Nor has Complainant otherwise shown that the Agency's non-discriminatory explanations are pretext for unlawful discrimination. In so finding, we determine that Complainant's sex discrimination claim is undermined by the fact that the same selecting officials chose a male applicant for a companion position during the same time period. Accordingly, we find that the AJ's finding that unlawful employment discrimination was not proven by a preponderance of the evidence is supported by substantial evidence of record.
CONCLUSION
Consequently, for the foregoing reasons, we find that substantial evidence supports the AJ's conclusion that Complainant has not shown that he was subjected to sex discrimination when the Agency did not promote him.
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
July 15, 2015
Date
2
0120132475
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132475