Jefferey G.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120181865 (E.E.O.C. Sep. 26, 2019)

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

Jefferey G.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120181865

Hearing No. 510-2016-00309X

Agency No. DON 15-69450-02774

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

ISSUES PRESENTED

The issues are (1) whether the Agency properly dismissed Complainant’s claim that he was
discriminated against when Agency officials “colluded” to select another candidate for an
Information Technology (IT) Specialist position; and (2) whether Complainant established that
the Agency discriminated against him based on his age, national origin, or race, or in reprisal for
his prior EEO activity, regarding his claims that he was not afforded an opportunity to compete
for a promotion and he was offered a temporary promotion, which was not fulfilled.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology (IT) Specialist, GS-2210-11, at the Agency’s Command Information Office, IT
Division, in Jacksonville, Florida.

Complainant stated that he applied for a GS-12 IT Specialist position, and that he was on the
certificate of eligible applicants (“certificate”), but he was not selected. Complainant stated that
on or about June 9, 2015, during the processing of his prior EEO complaint, he learned that one
of the selectees (S1) was placed in the position in early 2015 based on his 30% disability.
Complainant alleged in his prior EEO complaint that he was discriminated against when he was
not selected for the position because the other two selectees, (S2) and (S3), were outside of his
protected classes of age, national origin, and race.2 Report of Investigation (ROI) at 212-13.

Complainant stated that, in August 2015, the Deputy Director (DD) (age 39, USA,
Black/Japanese) verbally offered him a temporary promotion, effective immediately. On August
10, 2015, DD sent Complainant a follow-up email regarding the offer of a temporary promotion,
and Complainant stated that he accepted the offer. Complainant stated that on September 28,
2015, he participated in a mediation session with the Command Information Officer (CIO) (age
47, American, African American), who offered him a temporary promotion, and he declined
because he had already been in the position since August 10, 2015. Complainant stated that even
though he accepted DD’s offer, he was not paid for it, and there was no official paperwork. ROI
at 214, 83.

On October 29, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Hispanic),3 national origin (Colombia/South
America), and age (57), and in reprisal for prior protected EEO activity when:

1. on June 26, 2015, he became aware that he was not afforded the opportunity to
compete for the GS-12 IT Specialist position to which S1 was promoted and
converted to a career conditional employee; and

2. on August 10, 2015, he was offered a temporary promotion to IT Specialist, GS-
12, which was not fulfilled.

2 We note that the Commission affirmed the Agency’s finding that it did not discriminate against
Complainant when it did not select him for this position. Jefferey G. v. Dep’t of the Navy,
EEOC Appeal No. 0120181779 (Sept. 11, 2019).

3 The Commission notes that the term “Hispanic” typically denotes national origin rather than
race. However, herein, the Commission acknowledges Complainant's self-identification of his
race as Hispanic.
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On November 24, 2015, the Agency informed Complainant that it was accepting the above
claims for investigation. However, the Agency dismissed Complainant’s allegation that he was
discriminated against when Agency officials “colluded” to hire S2 as an IT Specialist for failure
to state a claim. The Agency also dismissed Complainant’s allegation that the Agency
discriminated against him when it advised him to file a separate claim, after he requested to file a
third amendment to his EEO complaint, DON 15-69450-00252, because it was a spin-off
complaint. Complainant objected to the dismissals, and the Agency responded that there was no
immediate right to appeal a partial dismissal and explained his appeal rights. ROI at 111-18.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing but subsequently withdrew his request. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged. As an initial matter, the Agency affirmed the prior procedural dismissals.

The Agency did not provide a prima facie analysis of Complainant’s discrimination claims based
on age, national origin, or race, or in reprisal for prior EEO activity, because management
officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, CIO
stated that S1 was taking a college course that required him to interview for jobs and provide
feedback for his class. CIO stated that S1’s name appeared on the certificate because he had an
active resume on the USAJOBS website. CIO stated that S1 was already selected for the
position, prior to Complainant’s application, but that Complainant had an opportunity to apply
for the other two openings for the position. CIO added that S2 and S3 were selected because they
were highly qualified for the position as compared to the other candidates, including
Complainant.

For claim 2, CIO stated that she discussed with DD the possibility of offering a temporary
promotion to Complainant during an upcoming mediation session for his EEO complaint. CIO
stated that offering the temporary promotion would provide Complainant with additional
experience to compete for future positions. CIO stated that when she offered the temporary
promotion during the mediation, Complainant declined.

The Agency then found that Complainant had not met his burden of showing that the reasons
were pretext for discrimination. The Agency noted that Complainant only provided
unsubstantiated assertions, opinions, and conclusions, but did not provide any substantive
evidence in support of his allegations. The Agency concluded that the preponderance of the
evidence did not support Complainant’s claims of unlawful discrimination based on his age,
national origin, or race, or in reprisal for his EEO activity.

CONTENTIONS ON APPEAL

Through his attorney, Complainant challenges the Agency’s procedural dismissal of his claim
that he was discriminated against when Agency officials “colluded” to hire S2 as a GS-12 IT
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Specialist. Complainant also argues that the Agency did not articulate legitimate,
nondiscriminatory reasons for its actions, and to the extent that it did so, he established that the
reasons were pretext for discrimination.

For claim 1, Complainant notes that S1 was promoted through his 30% disability, and then
converted to a career-conditional appointment. However, Complainant argues that S1 was placed
on the certificate, which denied him (Complainant) the “opportunity to compete and constitutes
the pretext for discrimination.” Complainant asserts that the Agency’s reason for placing S1 on
the certificate is “specious at best.” Complainant also argues that S1’s inclusion on the selection
panel “clearly creates the appearance of impropriety giving rise to an inference of discrimination
and reprisal.”

Regarding claim 2, Complainant states that DD stated that he could place him in the
“TELECOM” position immediately, and that Complainant accepted the offer. However,
Complainant asserts that he was in the position and doing the work, but not paid, and that there
was no official paperwork for the temporary promotion. Complainant states his “hearing Exhibit
2 regarding his PARS in Docket # 0120181779” shows that he was already performing the duties
of the Cell Phone Management position, which had the same position description as the GS-12
position he was promoted into in June 2016.

The Agency filed a brief in opposition to Complainant’s appeal, requesting that the Commission
upholds its final decision. For claim 1, the Agency argues that Complainant was not selected for
one of the three openings because of the keen competition. The Agency asserts that S1’s
inclusion on the selection panel does not show discriminatory intent because S1 was already
selected prior to Complainant’s application for the position. Additionally, the Agency states that
S1’s inclusion on the certificate shows that S1 was deemed qualified for the position. Regarding
claim 2, the Agency notes that it was based on Complainant’s own actions, namely, he denied
CIO’s offer of the temporary promotion during the mediation. The Agency asserts that there is
no evidence in the record to support Complainant’s allegations of discrimination based on his
age, national origin, or race, or in reprisal for his prior EEO activity.

ANALYSIS AND FINDINGS

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 (EEO MD-110), at Chap. 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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Procedural Dismissal

On appeal, Complainant challenges the Agency’s dismissal of his claim that he was
discriminated against because S2’s selection was “another example of the Agency going to
extraordinary lengths to select others for positions for which [Complainant] was equally or better
qualified under circumstances designed to prevent [Complainant] from being considered.”4 We
find that the Agency properly dismissed this allegation because Complainant’s claim that he was
discriminated against when S2 was selected over him has already been addressed in EEOC
Appeal No. 0120181779. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the
Agency shall dismiss a complaint that states the same claim that is pending before or, has been
decided by, the Agency or Commission. Accordingly, we will affirm the Agency’s procedural
dismissal of this claim.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, he must first establish a prima facie case 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his age, national origin, and race, and in reprisal for prior EEO activity, we find that the Agency
proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, CIO stated that S1’s
hiring was not an effort to deny Complainant an opportunity to compete for the GS-12 position,
and that Complainant had the opportunity to compete for the other two available openings.
Additionally, CIO stated that S1’s resume appeared on the certificate because he had an active
resume on USAJOBS; S1 had posted it there to fulfill a college course requirement. ROI at 229-
30.

4 The Commission has the discretion to review only those issues specifically raised in an appeal.
See EEO MD-110 at Chap. 9, § IV.A.3. We note that Complainant did not challenge the
Agency’s procedural dismissal of his claim regarding his filing a third amendment to his EEO
complaint. Accordingly, we will not address this claim in the instant decision.
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A Human Resources Specialist stated that S1 was non-competitively converted to the permanent
appointment based on his status as a 30% disabled veteran, and that S1 met the requirements for
promotion under the “30% disability authority.” ROI at 240-41. We note that the Agency’s
selection of S1 based on his status as a 30% disabled veteran is a legitimate, nondiscriminatory
reason. See Morris v. Dep’t of Agriculture, EEOC Request No. 05A40238 (Apr. 22, 2004) (the
Commission determined, in adjudicating an age discrimination claim, that the agency articulated
a legitimate, non-discriminatory reason for a selection when the evidence showed the selectees
were chosen because they had veterans' preference and the complainant did not).

For claim 2, CIO stated that prior to DD’s offer to Complainant of a temporary promotion, she
discussed the possibility of a temporary promotion with DD and one of her other managers. CIO
stated that she asked the other manager if she could temporarily move one of Complainant’s
coworkers (CW) to his team to allow Complainant to take a temporary promotion, and she asked
DD to broach the idea with Complainant to see if he was open to it. CIO stated that DD
unfortunately presented the idea as his own, and that when she offered Complainant the
temporary promotion during the mediation session, he declined it. CIO stated that because
Complainant declined her offer, he was never temporarily promoted, and CW remained in his
position. ROI at 233. DD corroborated that CW’s position was never vacated, and that
Complainant was only cross-trained. ROI at 226.

We find that Complainant has not shown that the proffered reasons were pretext for
discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer's proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05.

Regarding claim 1, Complainant argues that the managers’ reasons are “specious at best”;
however, we find that Complainant did not provide any evidence showing that their reasons were
unworthy of credence. For claim 2, Complainant asserts that he had been “sitting in the position
and doing the job” since August 10, 2015, and that he was performing the duties of a Cell Phone
Management position. However, we find that Complainant has not provided any evidence
showing that this is true, aside from his own assertions, and he has not provided any evidence to
show that CW was moved and that he was temporarily placed in CW’s position.5

To the extent that Complainant argues that the Agency “fail[ed] to complete the proper
paperwork” and then “falsely claim[ed] that no such promotion was given,” we find that
Complainant makes bare assertions that the management officials made false claims.

5 Complainant states that this evidence is in “hearing Exhibit 2 in Docket # 0120181779.”
However, Complainant, who did not provide a copy of this “hearing Exhibit 2” with his appeal
brief, does not cite to any evidence in the record of the instant complaint.
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Complainant withdrew his request for a hearing before an EEOC AJ, and as a result, we do not
have the benefit of an AJ's credibility determinations of the witnesses in this case. Complainant
bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory
acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See
Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013)
(complainant failed to establish that witnesses made false statements where he withdrew his
request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of
Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish
that his coworker made offensive comments in a “he said, she said” situation where complainant
requested a final decision and an Administrative Judge did not make credibility determinations).
Therefore, we find that Complainant did not establish that the Agency discriminated against him
based on his age, national origin, and race, and in reprisal for his protected EEO activity,
regarding his claims that he was not afforded an opportunity to compete for a promotion; and he
was offered a temporary promotion, which was not fulfilled, and we will affirm the Agency’s
final decision.

CONCLUSION

We find that the Agency properly dismissed Complainant’s claim that he was discriminated
against when Agency officials “colluded” to select S2. We also find that Complainant did not
establish that the Agency discriminated against him based on his age, national origin, or race, or
in reprisal for his prior EEO activity, regarding his claims that he was not afforded an
opportunity to compete for a promotion and he was offered a temporary promotion, which was
not fulfilled. Therefore, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final 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).
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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.

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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 26, 2019
Date