0120170059
06-29-2017
Elbert H.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elbert H.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120170059
Hearing No. 560201500234X
Agency No. 9V1M14114F16
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's September 2, 2016 final order concerning an 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 the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Aircraft Painter Inspector Leader, WL4102-09 at the Agency's Oklahoma Air Logistics Complex, 76 Aircraft Maintenance Group, 566th Aircraft Maintenance Squadron, at Tinker Air Force Base, Oklahoma.
On July 26, 2016, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of age (49) and reprisal (engaging in protected EEO activity) when: on July 25, 2014, Complainant was informed that he was not selected for promotion to the WS-4102-10, Painter Supervisor position (Vacancy No. AFMC-114076-142818-9V-LDB.) 2
On December 22, 2014, Complainant amended his complaint to allege ongoing harassment between December 16 and 18, 2014, also on the bases of age and reprisal, when:3
1. On December 16, 2014, his third level supervisor ("S3") directed his first level supervisor ("S1") to present him with a negative mid-year Civilian Progress Review Worksheet; and
2. On December 18, 2014, S3 directed S1 to present him with a 971 entry for alleged comments made about S1.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
On appeal, Complainant disputes the AJ's finding on the first allegation, his nonselection only. The AJ found that even assuming arguendo that Complainant could establish a prima facie case for discrimination on the bases of age and reprisal, the Agency provided a legitimate, nondiscriminatory reason for the nonselection. Specifically, Complainant was not a graduate of the Agency's Supervisory Development Program ("SDP"). In June 2013, a facility-wide policy was established, requiring all internal hires for first level supervisory positions, such as the one in question, be SDP graduates. The three individuals who were interviewed, including the selectee (34, prior EEO activity not disclosed), were all SDP graduates. The SDP is approved by the Union as a hiring requirement for supervisory positions. Moreover, the SDP's purpose is to provide supervisory training tailored to specific positions "forecasted" to open based on attrition data at the facility each year.
Complainant has not demonstrated that the Agency's proffered legitimate nondiscriminatory reason, the requirement that all selectees graduate from the SDP, was pretextual. In a nonselection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Ed., EEOC Request No. 05970561 (Aug. 6, 1998). Having considered the evidence of record, we find that complainant has not established pretext. Both Complainant and the selectee were qualified, but the selectee had completed the SDP. According to the record, Complainant, as with other employees, has an opportunity to "self nominate" for SDP training on an annual basis.
Complainant also alleges on appeal that "Younger Whites" are given advantages, and "do not have to ask" for assistance from supervisors with furthering their careers. For instance, he alleges that young, white employees receive advance notice and preparation for job listings, such as the one at issue here. Complainant did not include race or color as a bases of discrimination, nor did he raise these allegations in his formal complaint. To the extent Complainant is alleging he has been discriminatorily denied access to SDP training, or other advantages that would help him obtain a promotion, he is raising a new claim of discrimination. As these matters are not at issue in the complaint before us, they will not be adjudicated in this decision. If he has not done so already, Complainant may raise these allegations in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
Upon review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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.
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
June 29, 2017
__________________
Date
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.
2 Complainant's prior EEO activity concerns Agency No. 9VIM04209 (Agency Final Order, June 3, 2005) alleging discrimination based on race and national origin; and Agency No. 9V1M13150 (reprisal for prior EEO activity), filed on December 12, 2013, was investigated from February 6 to March 13, 2014, and is currently pending a hearing before an AJ, under EEOC Hearing No. 560201400352X.
3 Although Complainant did not mention the December 22, 2014 claims in the pre-hearing conference, the AJ, exercising an abundance of caution, reviewed them anyway.
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