Marcos S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 13, 2018

0120172258 (E.E.O.C. Dec. 13, 2018)

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

Marcos S.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172258

Hearing No. 410-2015-00187X

Agency No. ARIMCOMHQ14MAY01917

DECISION

On June 14, 2017, 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
May 4, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963 (EPA),
as amended, 29 U.S.C. § 206(d) 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 worked as a Disability Program
Manager/EEO Specialist, GS-0260-11, in the Agency’s EEO Office at Fort Benning, Georgia. On
August 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of sex (male), disability,
age (54), and in reprisal for prior protected EEO activity when:

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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1. he was denied equal pay while performing duties as an EEO Specialist, GS-0260-
12, and as the Acting EEO Complaints Manager, GS-0260-12;

2. a supervisor penalized him because of his visual disability for spreading work out
in the office in order to see;

3. a supervisor gave him unrealistic deadlines; micromanaged his work on a daily
basis; gave him a smaller office; did not tell him in advance when a commanding
officer was visiting; exposed him to daily bullying, intimidation, denigration,
embarrassment; overly criticized everything he did; and informed his coworkers
that he did not know his job;

4. he became aware he was not selected for the position of EEO Specialist, GS-0260-
12, for which he applied under Vacancy Announcement Number
SCEA13764471981726; and

5. he was informed that he could not be promoted to GS-0260-12 because he was not
performing at that level.

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 (AJ). Complainant requested a hearing, but the
AJ denied the hearing request on the ground that Complainant failed to comply with an order of
the AJ. The AJ remanded the complaint to the Agency, and 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. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the record shows that he was subjected to discrimination
and a hostile work environment. Complainant reiterates numerous incidents in support of his
hostile work environment claim. Further, Complainant challenges the credibility of management
officials and witnesses. Complainant argues that he was more qualified than the selectee for the
GS-12 position at issue. In addition, Complainant contends that the AJ erred in dismissing his
hearing request. Accordingly, Complainant requests that the Commission reverse the final
decision.

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 (EEO MD-
110), at Ch. 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
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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”).

The AJ's Dismissal of Complainant's Hearing Request

As an initial matter, the Commission will first address the AJ's dismissal of Complainant's hearing
request as a sanction for Complainant's failure to comply with his January 5, 2017 Pre-Hearing
Conference Order and failure to show good cause. The Commission notes that Commission
regulations and precedent provide AJs with broad discretion in matters relating to the conduct of
a hearing, including the authority to sanction a party for failure, without good cause shown, to fully
comply with an order. See 29 C.F.R. § 1614.109(e); EEO MD-110, at Ch. 7 (Aug. 5, 2015).
However, such sanctions must be tailored in each case to appropriately address the underlying
conduct of the party being sanctioned. A sanction may be used to both deter the non-complying
party from similar conduct in the future, as well as to equitably remedy the opposing party.
Complainant has presented no persuasive arguments on appeal regarding the AJ’s sanction against
him. In any event, the Commission finds that the AJ did not abuse his discretion by dismissing
Complainant’s hearing request as a sanction for Complainant's failure to comply with his orders.

Claim #1 (Pay Discrimination) and Claim #5 (Non-Promotion)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No, 05950351 (Dec. 14, 1995).

Complainant contends that while working in a position graded as GS-11, he was performing GS-
12 level work previously performed by the Complaint Manager who had recently passed away.
When Complainant requested that he be promoted to a GS-12 grade, his request was denied.
Record evidence shows that Complainant was not promoted to GS-12 because of the mistakes he
frequently committed and his lack of communications skills. ROI 895-897. Also, according to
the Agency, Complainant was not performing all of the duties of the former Complaint Manager,
but was sharing those duties with his co-workers. This is a legitimate, nondiscriminatory reason
for the Agency’s action.
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Complainant disputes the truth of the Agency’s explanation, but our examination of the record
confirms the Agency’s conclusions with respect to Complainant’s communication abilities. We
conclude that Complainant has failed to show the Agency’s explanation to be a pretext designed
to conceal discriminatory animus.

EPA Claim

Complainant also alleged a violation of the Equal Pay Act (EPA). Specifically, Complainant
alleged that he served as the “Acting Complaints Manager,” performed GS-12 duties, but, unlike
his female co-workers, was not paid at the GS-12 level. The United States Supreme Court
articulated the requirements for establishing a prima facie case of discrimination under the EPA in
Corning Glass Works v. Brennan, 417 U.S. 188 (1974). To establish an EPA claim, a complainant
must show that he or she received less pay than an individual of the opposite sex for equal work,
requiring equal skill, effort, and responsibility, under similar working conditions within the same
establishment.

Once a complainant has met this burden, an employer may avoid liability only by showing that the
difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a
seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality
of production of work (also referred to as an incentive or piecework system); or, (4) a differential
based on any factor other than sex. Id.

The requirement of “equal work” does not mean that the jobs must be identical, but only that they
must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976).
The terms skill, effort, and responsibility, “constitute separate tests, each of which must be met in
order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and
responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes
such things as “experience, training, education, and ability.” 29 C.F.R. § 1620.15(a). Effort
addresses the amount of “physical or mental exertion needed for the performance of a job.” 29
C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in the
performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. §
1620.17(a).

Here, Complainant claims that he acted as the Complaints Manager and performed duties under a
GS-12 position description while being paid at the GS-1 level. Further, Complainant contends that
his female co-workers (S1 and CW-1) performed the same duties and were paid at the GS-12 level.
The record reveals that Complainant was initially a GS-9 EEO Specialist and was promoted in
January 2011, to the GS-11 level. ROI 140. Complainant’s position description stated that he
performed duties as a GS-11 EEO Specialist and that the GS-11 level was the full performance
level of the position. The Agency’s Complaints Manager passed away and much of those duties
were distributed between Complainant, S1, CW-1, and the EEO Manager. ROI 149. Many of the
duties Complainant was asked to perform were already within the scope of his position description.
There is no evidence indicating that Complainant was ever the “Acting Complaints Manager.”
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Further, the identified comparators were already occupying positions at the GS-12 level and
performing duties under GS-12 position descriptions. Management officials confirmed that
Complainant’s GS-11 duties did not contain any of the supervisory controls or level of
responsibility of a GS-12 EEO Specialist. Finally, management officials maintained that the
quality of Complainant’s work product was not satisfactory even at the GS-11. ROI 896, 936-37.

Here, we find that Complainant has failed to establish a prima facie case of EPA discrimination.
Although Complainant has established that he was being paid less than his female colleagues, he
has not established that he was being paid less for equal work, requiring equal skill, effort, and
responsibility. The record reflects that while some of the Complaints Manager duties were spread
between Complainant and other co-workers, Complainant was never assigned as Acting
Complaints Manager and only assisted in some of the duties which were within the scope of his
GS-11 position. Further, Complainant’s identified comparators were already working under GS-
12 position descriptions. Therefore, Complainant has not established that he was performing equal
work.

Claims #2 and # 3 (Harassment)

Complainant contends that his supervisor (S1) frequently harassed him because he did not maintain
an orderly workspace. According to Complainant, he spread his work papers around his office to
permit him to read them more easily. S1 criticized him for being disorderly and took photographs
of his office, apparently to document the disorder. Additionally, according to Complainant, S1
harassed him by, inter alia, imposing unrealistic work deadlines; micromanaging him; assigning
him a smaller office; and exposing him to daily bullying, intimidation, denigration, and
embarrassment.

It is well-settled that harassment based on an individual's statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his
membership in those classes or his prior EEO activity; (3) the harassment complained of was based
on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably
interfering with his work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).

Here, the Commission finds that Complainant has not shown that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming
that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment,
Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory
animus. There is no evidence, nor even any non-conclusory allegation, that any of the claimed
harassing actions undertaken by Agency management were based on any of Complainant’s
statutorily protected classes. Without evidence of this nature, Complainant’s harassment claim
fails.
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Claim #4 (Non-Selection)

The Agency explains that Complainant was not selected for the GS-12 position in question because
the selectee was better qualified than Complainant. Specifically, the selectee was chosen because
of her substantial experience as an Equal Employment Specialist and because her resume
“succinctly stated her experience” while Complainant’s resume “did not appear very professional,”
containing errors and misspellings. ROI at 683. This is a legitimate, nondiscriminatory reason for
the Agency’s action.

In a non-selection case, a complainant may show that an employer's reason for the non-selection
was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to
those of the selectee. Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); See also. Celestine v. Petroleos de
Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not
probative evidence of discrimination unless those disparities are of such weight and significance
that no reasonable person in the exercise of impartial judgment could have chosen the candidate
selected over the plaintiff for the job in question”); See also Burdine, 450 U.S. at 259 (noting that
in making hiring or promotion decisions, the employer has discretion to choose among equally
qualified candidates, provided the decision is not based upon unlawful criteria).

In this case, Complainant has not shown his qualifications to be superior to those of the selectee.
The selectee had more experience in the area of EEO complaints management than Complainant:
five years, 10 months for the selectee as compared with two years and eight months for
Complainant. Nor are Complainant’s other qualifications so distinguished as to support the
conclusion that the Agency’s reason for not selecting him are pretextual.

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 final decision.

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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.

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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

December 13, 2018
Date