0120130277
03-18-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130277
Hearing No. 430-2012-00004X
Agency No. DON 10-40085-03488
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Supervisor, WS-4701-10, at the Agency's Maintenance Department, Naval Engineering Command MidAtlantic in Norfolk, Virginia.
On October 26, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior EEO activity when:
1. on September 8, 2010, he was not referred or selected for the position of Public Works Manager, GS-1601-13; and
2. on October 5, 2010, he was not selected for a 120-day appointment to Maintenance Superintendent, GS-1601-12, in the Facilities Management and Sustainment Branch.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On July 31, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. On July 28, 2010, the Agency distributed a vacancy announcement for the position of Public Works Manager (claim 1). Complainant submitted his resume to a Human Resources Officer for consideration for the subject position.
Regarding claim 1, according to the Office of Personnel Management, the subject position requires at least one year of experience in a GS-12 or equivalent position. The Human Resources Specialist (HR Specialist) determined that Complainant did not meet the minimum requirements for the subject position, and did not forward his resume to the selection panel because Complainant did not possess the requisite one year of experience in the GS-12 position. Furthermore, the AJ noted at the time of his selection, the selectee was a Supervisory Maintenance Superintendent, GS-12, and had been Complainant's first level supervisor for six years.
Regarding claim 2, the AJ noted that when the selectee assumed his new role as the Public Works Manager, the Director directed him to appoint a 120-day temporary replacement for the Maintenance Superintendent position that he had just vacated. The new Public Works Manager asked each of his first line supervisors, including Complainant, whether they wanted to submit a resume to be considered for the temporary appointment. Complainant was among the five supervisors who submitted their resumes. The Public Works Manager and the Product Line Coordinator determined that the temporary appointment required strong understanding of the performance metrics used to evaluate all of the work at the work center level.
Further, the AJ noted that the Public Works Manager selected the Industrial Engineering Technician for the 120-day temporary appointment based on his knowledge of the command and was also more proficient than Complainant with respect to the necessary IT skills.
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of race and reprisal discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The AJ noted that in her fact-finding testimony, the HR Specialist stated in regard to claim 1, each time she receives the candidates' resumes for vacancies, she would print the Office of Personnel Management qualification standards "to determine - - what qualifies a person to give them the skills that they could basically be qualified, minimally qualified to fill this position. In other words, I do 'quals.' I do qualifications." The HR Specialist stated, "once I determine a person's specialized experience is equivalent to a GS-12, then I look to see if they have the screen-out elements. The screen-out element would be if they don't have at least both of these things, if they don't describe both of these things in their in their resume, then it's basically what it says, I screen hem out. I don't find them qualified.
The HR Specialist stated that based on the classification requirements for the GS-13-1601, the duties that Complainant "described in his resume, both as a Maintenance Supervisor and a business owner, I didn't feel - - well, I know that the WS-10 didn't qualify him for. And I didn't feel like that his experience as a business owner qualified him. I didn't think the duties were that much different than what he does. The resume was vague. There was no specific explanation of or description of his specialized duties. He just made broad statements. There was nothing to explain further on how he accomplished these duties, what he did, how he - - what he did to do the jobs, how he met end results." The HR Specialist stated that she also did not refer two other candidates' resumes to the selection panel because they also did not meet the minimum qualifications.
Complainant asserted regarding claim 1 that his private sector experience from the 1980's should have satisfied the requirement for experience at a GS-12 level. The AJ noted, however, that there was no evidence in the record indicating the HR Specialist's decision not to consider this remote past experience as equivalent to the required GS-12 experience was motivated by discriminatory animus. The AJ also considered Complainant's arguments regarding the Public Works Manager and the Product Line Coordinator being identified as responsible management officials in his prior EEO complaints. However, the AJ determined that mere knowledge of prior protected activity or being identified as responsible management official is insufficient to raise a genuine issue of material fact. Moreover, the AJ noted that Complainant's name was never forwarded to the Product Line Coordinator or anyone on the selection panel for consideration because the HR Specialist determined that Complainant did not meet the minimum qualifications for the subject position.
Regarding claim 2, the Public Works Manager (Manager) was the recommending official for the 120-day temporary appointment. The Manager stated that he reviewed the candidates' resumes and made a recommendation to the Product Line Coordinator. Specifically, the Manager stated that he asked all of the first line supervisors in Facilities Management and Sustainment to apply for the subject detail if they were interested and "not all said 'yes,' but the ones that did, the next thing I asked them for in the same conversation was, 'I need a copy of your resume so I can evaluate your... skills and everything.' So, I got resumes from two-thirds of the people that I asked, reviewed the resumes for the skills and whatnot, and sent my recommendation over to [Product Line Coordinator], who is in the business Line, the front-line coordinator. Sent it to him for his approval or disapproval or notes or comments beyond that."
The Manager stated he recommended Industrial Engineering Technician (Technician) for the 120-day temporary appointment because of "his understanding of the organization, the organization's goals, the SOPs, our processes, terms of art, which is a metrics performance, or performance metrics that we use to evaluate all of the work we do at the work center level. [Technician's] position at the Business Office gives him a unique and very intimate understanding of that - - of the processes and how they're - - how that information is gathered and collected." The Manager also stated that the Technician "is a very articulate person...he understands the organizational chart. I mean, he understands the chain of command, which is vital in that position, primarily because there are some - - at some levels that a response is warranted and at some levels it's not."
The Manager stated that he did not recommend Complainant for the subject temporary appointment because he did not feel that Complainant had the same understanding as the Technician based on his experience as Complainant's first level supervisor. For instance, the Manager stated that Complainant's work center "is consistently the worst work center performance-wise is in the E&S branch. And the numbers will bear that out. We look at them all - - we look at them weekly."
The Manager also stated that the selectee "is very proficient with his IT skills, i.e., the Microsoft Office Suite, MAXIMO, SLCADA, which are all databases internal to use that we use. And in comparison, I don't believe [Complainant's] level of understanding of those processes or those IT databases is - - is really borderline functional. I've asked him - - [Complainant] used to, for many - - for a very long time, would sent me - - if I had requested a document, I would get it in the form of an e-mail, in the body of the e-mail. Probably for four months, I would go back to [Complainant] and explain, 'I need you to save this as a document, send me an attachment so that I have it as an attachment and [I] can... work from there.' Even so far as to go out to his desk and show him how to do that. And, I don't think we ever reached a point where I could ask [Complainant] for... at attachment and get it sent to me correctly."
Moreover, the Manager stated that Complainant's race and prior protected activity were not factors in his decision to recommend the Technician for the 120-day temporary appointment.
The Product Line Coordinator (Coordinator) was the concurring official concerning the 120-day temporary appointment. The Coordinator stated that after he received the Manager's recommendation, he and the Coordinator "... reviewed it. And, ... going over what [Manager] had come up with and the rationale for it, I didn't see any problem with it, so we processed the paperwork." The Coordinator stated "I know [Technician's] background. I knew he would... fill the void and do basically what [Manager] was looking for. Somebody that could step in and help with the performance metrics that they were fighting at each of the PWDs [Public Works Managers] right now. And [Technician] has the background and experience and working in MAXIMO and the database. MAXIMO is the database where we keep all of our information. And has a lot of experience at that, as well as in the supervision, so I thought it was a good choice."
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant, on appeal, argues in regard to claim 1, that "even though [Complainant] had not served a year as a GS-12, he had equivalent experience in the private sector which was reflected on his resume, including but not limited to all aspects of operating his own electrical and plumbing contractual business for residential and commercial customers for five years." Complainant further argues that between March 1, 2007 and March 1, 2009, no African-American employees were promoted to permanent WS supervisory positions...such blatantly discriminatory statistics themselves raise a serious question about the rationales offered by the Agency for its multiple recruitments for Public Works Manager and its failure to interview [Complainant]."
Further, Complainant argues in regard to claim 2, he previously worked as a Maintenance Supervisor in the FM&S Branch and "all of his performance evaluations were Fully Successful...[Technician] had never worked for [Manager], so [Manager] had never rated his skills...therefore, [Manager] was not in a position to compare the skills of [Complainant] and [Technician] or to determine that [Technician] had the best skills for the position."
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute requiring resolution through a hearing.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no basis to disturb the AJ's conclusion that responsible management official articulated legitimate, non-discriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, was a pretext masking discrimination.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
March 18, 2015
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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