Dan R.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120182274 (E.E.O.C. Sep. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dan R.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120182274

Agency No. 51201800019

DECISION

On June 24, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 18, 2018, final decision 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency’s final decision (FAD) correctly determined that Complainant failed to
establish that he was discriminated against based on his sex, disability and reprisal when he was
allegedly denied the opportunity to compete for a vacant Management Program Analyst position,
when a contract employee was non-competitively hired in October 2017.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Hazardous
Waste/Materials Facilities Assistant at the Agency’s Office of Facilities and Environmental
Quality (OFEQ), Office of the Secretary facility in Washington, DC.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On December 8, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male), disability (mental and physical), and reprisal
as set forth above.

Complainant testified that he suffers from post-traumatic stress disorder (PTSD) and
bronchiectasis (lung disease), indicating that he is a 100% disabled veteran. He cited prior
complaints he had filed in 2001, 2008, 2013, and 2015 as his prior EEO protected activity. D1,
the OFEQ Director, indicated that he was aware of Complainant’s name from two other prior
complaints that he filed against the Agency.

Complainant alleged that he was denied an opportunity to compete for a vacant Management
Program Analyst position to which a former contract employee (CE1), was non-competitively
hired. He noted that he contacted the Disability and Diversity Program Manager (DDPM) by e-
mail in October 2017, regarding any position as a Management Program Analyst and received no
response. He also contended that DDPM, D1, and a former Senior Management Advisor (SMA)
failed to follow Human Resources (HR) Bulletin #180, a special authority for the employment of
veterans, in the hiring process at issue. Complainant stated his belief that D1, SMA, and DDPM
discriminated against him due to his sex, prior EEO activity and disability explaining that the
position at issue was not advertised; and that the selecting official was SMA.

He asserted that as a 100% disabled veteran, he should have been given the same opportunity as
CE1, who he claims had first-hand knowledge of the position becoming vacant because she was
D1’s current contractor and personal friend. He stated that when CE1 was the contractor, she
placed on her Linkedin page that she performed the following duties within OFEQ, “Assembles
human resource staffing documents for vacancies and staffing needs within the organization,”
giving her an unfair advantage, and indicating that CE1 was pre-selected for the position at issue.

D1 stated that his relationship with CE1 was professional, affirming that he previously knew her,
when they were both contractors working for another federal agency. He testifies that CE1 was
selected to fill the vacancy left by another employee, affirming that SMA was the hiring manager
for the position. He stated that he was not directly involved in the recruitment for the position but
SMA kept him “in the loop” as to the process; that she communicated to him that she coordinated
with DDPM to review “potential qualified resumes of disabled veterans;” and that as a result, she
interviewed CE1 and elected to hire her for the position through a special hiring authority for
veterans. He noted that CE1 is also a disabled veteran, stating that while he has never thoroughly
reviewed her qualifications, he was aware that she is a retired military officer with management
analyst and project management experience. He stated that at the time that she was hired for the
Management Program Analyst position, CE1 was already performing related work as a contractor
for the Department.

DDPM stated that Complainant, on or about October 19, 2017, e-mailed “the vets at commerce
mailbox,” a mailbox on the Office of Personnel Management’s website; and that applicants (both
veterans and non-veterans) send their resumes and/or names inquiring about and/or seeking
employment opportunities.
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He stated that the mailbox receives hundreds of inquiries each week and that the mailbox is not
checked on a daily basis, adding that he made every attempt to respond as timely as possible. He
acknowledged reading, on October 25, 2017, an e-mail sent by Complainant inquiring about
opportunities/ vacancies for a Management Analyst position under the Agency’s “veterans hiring
initiatives.” DDPM stated that he was contacted concerning an EEO complaint by Complainant
regarding his failure to respond to Complainant’s e-mail; and that he indicated that due to limited
staffing, he was unable to respond to inquiries in the mailbox as timely as he would like.

DDPM stated that based on unverified information shared by Complainant, he would be eligible
for special hiring authority. He testified that CE1 submitted her resume and proof of eligibility for
a non-competitive appointment, prior to October 16, 2017, for positions within the Agency and
was subsequently hired under the special hiring authority for disabled veterans. He stated that D1
communicated with him that he wished to fill a vacant position in the OFEQ with CE1; and that
the likelihood of being hired for a position under the special hiring provisions often came down to
timing. He explained that an applicant can submit a request to be considered to him as well as to
the hiring manager. He stated that in this case, CE1 had submitted her documents to him, and he
began sharing her resume with hiring officials who had expressed interest in hiring a veteran, non-
competitively, with the experience CE1’s resume reflected. He added that while CE1 was under
consideration for another position, D1 contacted him to advise that he received approval to fill a
position for which he thought she might be a suitable candidate. DDPM stated that he advised D1
that CE1 was eligible for a non-competitive appointment if he wanted to do so, and CE1 agreed.
At which point, D1 would need to advise other hiring officials that CE1 was no longer available.
DDPM added that no effort was made to exclude Complainant from consideration for any position.

SMA testified that hiring managers are routinely reminded and encouraged to take advantage of
available special hiring authorities, stating that to that end, OFEQ managers have used the Veterans
Hiring Authorities’ process to recruit candidates for its vacancies. She stated that DDPM has
coordinated this effort for them, adding that since she did not have previous experience with the
processes and requirements of the program(s), she deferred to and worked closely with DDPM to
ensure compliance with the process. SMA stated that in the interim and before the vacancy at
issue was filled, a federal employee (E1) and CE1 (then a contractor) assumed some of the general
duties previously performed by the individual who held the position.

SMA stated that she announced during an October 10, 2017, staff meeting that position had been
filled and that the selectee would be on board one week later, i.e., October 16, 2017. SMA testified
that she did not consider Complainant at any time or in any way during the process of working
with DDPM to fill the position at issue; and that she did not discriminate or retaliate against him
in any way. She asserted that she had no idea whether Complainant would apply for this position
if it were advertised and was instead focused only on hiring a strong person to fill the vacancy.

In his rebuttal, Complainant stated that SMA was OFEQ’s lead HR Liaison and she had stated that
she did not have any experience with the process and requirements of the program Special Hiring
Authority, which, Complainant asserted, was a false statement noting his open EEO complaint
against her.
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He further indicated that he had applied for a vacancy within OFEQ where SMA was the hiring
official; that he made the internal non-competitive Certification List; and that she had hired her
subordinate. Complainant stated that OFEQ has previously used the Special Hiring Authority thru
DDPM; and that he had seen vacancies posted for OFEQ also stating who to forward resumes to
on the “Feds Hire Vets” website.

Complainant asserted that D1 used his position to influence the hiring process for CE1, knowing
that they both were from the same city, attended the same High School, and were Army Veterans.
He stated that D1 was very close to CE1’s sister around the same time with whom he had graduated
High School. Complainant also noted that on D1’s wife’s Facebook page, she posted a picture of
herself and D1; and CE1’s sister responded to the picture. At that time, D1 was not an Agency
employee, becoming one about one month later.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

In his appeal brief, among other things, Complainant reiterates his allegations; contended that a
thorough investigation was not conducted into his complaint; that the Agency did not provide a
complete ROI because it lacked adequate documentation; and asserting that he had proven
discrimination based on his protected classes. He also contended that the testimony of a witness
was not considered by the Agency.

In its response, the Agency reasserts its position that Complainant was not subjected to
discrimination or reprisal; and that a supplemental investigation was conducted on his complaint
once previously unavailable documents were located.

STANDARD OF REVIEW

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”).

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must initially establish a prima facie case by demonstrating that 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, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex, disability and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged adverse employment action in this case. Management explained that CE1,
also a qualified disabled veteran with relevant job experience, was appropriately selected for the
position at issue prior to Complainant’s inquiry into whether any such position was available.

In an effort to show pretext, Complainant asserted that CE1 was pre-selected based on her personal
relationship with D1; and that the Agency failed to follow the process for hiring veterans.
Regarding his claim that CE1 was preselected, the Commission notes that even if preselection
occurred, it would not be unlawful unless Complainant can show that the preselection was driven
by discriminatory animus. See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No.
05950329 (Feb. 23, 1996). Preselection, per se, does not establish discrimination when it is based
on the qualifications of the selected individual and not some prohibited basis. McAllister v. U.S.
Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Moreover, the failure to follow the
proper procedures for hiring veterans, although actionable, is not, by itself, evidence of
discrimination.

We simply find no persuasive evidence of pretext here. The record indicates that the decision to
hire CE1 was made, and she began working in her new position, prior to Complainant’s email
inquiry to DDPM. Therefore, Complainant has failed to show that management’s explanations
were a pretext for discrimination based on membership in his protected classes or that
discrimination played any role in their selection of CE1 for the position at issue.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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 27, 2019
Date