Judson P.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 5, 2020

2020004158 (E.E.O.C. Nov. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judson P.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004158 Agency No. ARTACOM17OCT03669 DECISION 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 July 2, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. The Agency posted Vacancy Announcement Number NEAJ170175991963781, GS-1150-09, for the position of Industrial Specialist, GS-1150-09, at the Agency’s Tank- Automotive and Armament Command (TACOM), Watervliet Arsenal. The Vacancy Announcement indicates the Agency was seeking to fill three vacancies as a temporary appointment not to exceed one year. Promotion potential for the position was listed at the GS-11 level. Person A, Human Resources Officer, Civilian Personnel Advisory Center (CPAC) Watervliet Arsenal, stated that ten individuals, including Complainant applied for the vacancy. 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. 2020004158 2 The record contains a July 20, 2017 email from Person B noting that multiple registers were being returned non-selection/cancel RPA (request for personnel action). Among the list of cancellations was 805698-Industrial Specialist, GS-1150-09 full performance level (FPL) 11, Term, containing a notation that there were “2 spaces left to fill.”2 Regarding the Industrial Specialist position, Person B noted that management will be changing their recruitment strategy and will announce the position at the GS-07 FPL 11 level. Person B noted a new recruitment package and RPA will be started. Complainant received an email dated August 23, 2017, notifying him that he was not selected for the Industrial Specialist position and indicating that another candidate was selected. On October 3, 2017, Complainant initiated EEO Counselor contact regarding his nonselection for the Industrial Specialist position. On October 4, 2017, Complainant received an email from usastaffingoffice@opm.gov informing him that the notice he received on August 23, 2017, did not reflect the correct status of the vacancy under announcement number NEAJ170175991963781. Rather, he was informed that it should have stated that the vacancy announcement was cancelled and that a selection was not made for the position. On October 27, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Jewish), age (72), and in reprisal for prior protected EEO activity when: On October 3, 2017, he became aware he was not interviewed or selected for the position of Industrial Specialist, GS-1150-09, Vacancy Announcement Number NEAJ170175991963781 by Watervliet Arsenal, Civilian Personnel Advisory Center (CPAC), in a recruitment action, Vacancy ID: 1963781. On December 11, 2017, the Agency issued a final decision dismissing Complainant’s complaint for failure to state a claim. Complainant appealed the Agency’s dismissal to the Commission. In EEOC Appeal No. 0120180760 (March 13, 2018), the Commission reversed the Agency’s final decision dismissing Complainant’s complaint and remanded the matter to the Agency for further processing. At the conclusion of the investigation on the remanded complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 2 Person B noted that the actual RPA that was cancelled/not filled was the “child” RPA of #16DEC4AJIOOD00805698. Person B stated that the actual RPA that was cancelled was #17APR4AJIOOD00017599. 2020004158 3 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. In its final decision, the Agency noted that the July 20, 2017 email from Person A shows that management requested cancellation of 17 recruitment actions, including the one for the Industrial Specialist position at issue in Complainant’s complaint. The Agency noted that recruitment for the other positions was cancelled because management decided not to recruit for those skills at that time. The Agency stated in the case of the Industrial Specialist position management’s recruitment strategy changed and they wanted to announce it at the GS-07 FPL 11 level, rather than at the GS-09 FPL 11 level. The Agency found it unreasonable to conclude that management would have cancelled recruitment for 17 positions to conceal a discriminatory motive for cancelling the recruitment action where Complainant was referred for consideration. The Agency found management provided a legitimate, nondiscriminatory explanation for cancelling the referral list. The Agency noted that Person C, Supervisory Production Controller, said that cancelling the GS-09 recruitment action in favor of a GS-07 recruitment action would broaden the potential pool of candidates. The Agency stated there was no evidence that management’s decision-making process was influenced by discriminatory animus. On appeal, Complainant claims the investigation lacked thoroughness and that the Agency did not provide applications, rankings, and no record of who was deemed qualified, selected, or nonselected. Complainant argues the hiring strategy to fill the position at a lower grade level is “illogical.” Moreover, Complainant states even if the request for recruitment was canceled, there is no record of a replacement certificate or a similar recruitment at a lower grade. Complainant admits the July 20, 2017 email in the record “may relate to the claimed vacancy [at issue].” However, he states that even if it does, the email contains the notation “2 spaces left to fill” for the position at issue. Thus, he argues this is evidence that one selection was made before the Agency decided not to fill the remaining two vacancies. ANALYSIS AND FINDINGS 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”). Generally, claims of disparate treatment are examined under the tripartite 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). 2020004158 4 For Complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. 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 her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). At the outset, we address Complainant’s contention that the record lacked thoroughness. While we find Complainant is correct in his assertion that the record lacked the applicants’ applications or rankings of the candidates, we note the record reveals that the position at issue was cancelled, and as a result no interviews were conducted and no actual selection was ever made.3 Thus, we find the record in the present case was fully developed. In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted management cancelled the recruitment action for the Industrial Specialist position to change their hiring strategy so that the selection would be made at a lower grade level. Person C stated that it was decided to cancel this vacancy because very few applicants applied and that “[b]y cancelling the vacancy the intent was to change our recruitment strategy and increase the applicant pool.” 3 We recognize the July 20, 2017 email noted that there were two, instead of three, vacancies to fill for the Industrial Specialist position and the August 23, 2017 notification stated that another person was selected. However, an October 4, 2017 email explained the error in the August 23, 2017 email. Moreover, the record contains affidavits from five individuals all stating that no selection was made before cancellation of the recruitment action for the Industrial Specialist position. 2020004158 5 While Complainant challenges the Agency’s hiring strategy to fill the position at a lower grade level as “illogical” we find that his disagreement over management’s business decision does not constitute evidence that the Agency’s decision was motivated by discriminatory animus. Further, we note that Complainant was initially told that another candidate was selected for the position. However, the record reveals that CPAC erred in sending that initial notice and a corrected notice was later sent clarifying that the vacancy announcement had been cancelled and that no selection had been made. We find the mistake in the August 23, 2017 notice insufficient to show that the Agency’s actions were motivated by discrimination. Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency’s actions were based on any of his protected bases. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020004158 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 November 5, 2020 Date