Ramiro R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 11, 2019

0120180902 (E.E.O.C. Apr. 11, 2019)

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

Ramiro R.,1
Complainant,

v.

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

Appeal No. 0120180902

Hearing No. 510201500271X

Agency No. DON140020702725

DECISION

On January 4, 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
December 5, 2017 final decision concerning his equal employment opportunity (EEO)
complaint. He alleged 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Chief of
Training / Fire Protection Specialist, GS-0081-11, at the Agency’s First Coast Navy Fire and
Emergencies Service Department Naval Air Station facility in Jacksonville, Florida.

DON 14-00207-02725

On September 17, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity under Title
VII, 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. On July 23, 2014, he was not selected for the Fire Protection Specialist (Assistant
Chief of Operations, GS-0081-11) position;
2. On September 3, 2014, Complainant was excluded from the 59 minutes of leave
that management granted to others;
3. On December 10, 2014, Complainant was not selected for the Fire Protection
Specialist (Assistant Chief of Operations, GS-0081-11) position;
4. On December 12, 2014, Complainant was subjected to reprisal and harassment,
when management discussed his EEO activity with non-management personnel,
and management did not respond to his request to be briefed on his non-selection;
and

DON 16-00207-01611

On May 12, 2016, Complainant filed complaint DON 16-00207-01611, which alleged
discrimination and non-sexual harassment, when, on:

5. On March 14, 2016, Complainant was not selected to fill the position of
Supervisory Firefighter, GS-0081-11, announced under Job Announcement
Number SE60081-11-1582236MZ274171;
6. On April 4, 2016, management did not attend a scheduled meeting with
Complainant; and
7. Prior to March 14, 2016, management did not submit Complainant’s name to be
considered for the “Training Chief of the Year” Award;
8. During mid-February of 2016, management assigned him a government-issued
Jeep;
9. In May of 2015, management removed him from the promotion process; and
10. In 2013, management did not allow Complainant to participate in a shipboard
working group.

The Agency accepted the claims listed above as 1 - 5, 6 and 7. The Agency dismissed claims 8
through 10 of complaint DON 16-00207-01611 on the grounds of failure to state a claim or
untimely EEO contact.

The record contains the following pertinent evidence developed during the investigation into the
complaints.

Claims 1, 3, and 5 (Non-Selections)

Complainant was serving as the GS-11 AC Training. He had been promoted to a GS 11 position
in March of 2014. Complainant was in the training department.

Complainant had served as a witness for the EEO complaints for two junior employees and had
filed his own prior EEO complaint.
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Complaint’s first-level supervisor was the Deputy Fire Chief, GS-0081-12 (S1). Complainant’s
second-level supervisor was the Fire Chief, GS-0081-13 (S2). Complainant’s third-level
supervisor was the Executive Officer (S3).

Complainant identified S1 and S2 as the management officials who allegedly discriminated
against him in this appeal. The records in this appeal and his prior appeal, show that the named
management officials were aware of Complainant’s prior EEO activity at the time of the actions
at issue here.

July 2014 Non-Selection

The Agency sought to fill the GS-0081-11 position of Supervisory Firefighter, Assistant Chief of
Operations. The position required one year of specialized experience as a GS-09.

The Fire Department decided to fill this position using a Manager’s Identification of Candidates
(MIC). The MIC was referenced as MIC #819862A. The MIC is an internal method for filling
jobs used by hiring managers when the Area of Consideration remains internal to the
organization’s permanent federal civilian workforce and there are at least two qualified job
candidates.2

On April 30, 2014, the assigned Human Resources Specialist, GS-0201-12, Navy Region
Southeast, sent an email announcement to 20 individuals, who were GS-09 level employees who
were located within the Area of Consideration (OAC), whom she believed were qualified for,
and would be interested in, the position. She stated that she did not realize that Complainant was
not on the list of recipients.

When Complainant discovered that he had not been included in the email, he informed
management. The Deputy Fire Chief (DFC) (S1) and the Chief (S2) decided to re-announce the
position in order to allow Complainant the opportunity to apply. Complainant applied.

Complainant was referred for an interview, along with the eight recipients, who were referred to
the selecting officer, S2, the Fire Chief. He decided that an interview panel should be convened
to interview the candidates and to recommend a candidate for selection.

S2 appointed the interview panel members. The Supervisory Fire Protection Specialist, a former
coworker (CW1), was designated as one of the panelists.3 Complainant informed the Fire Chief
(S2) of his concern that he would not be given a fair opportunity to interview if CW1 was on the
panel, but S2 did not respond.

2 This alternative form of selection does not require a form USAJOBS vacancy announcement or
a certificate of eligible candidates to be issued from the Office of Civilian Human Resources.
3 Complainant had filed a prior complaint against his supervisor (S1) and against CWI in
September of 2013.
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Prior to the interviews, the members of the interview panel (First Panel) were provided with all
of the candidates’ resumes. The resumes were not graded or ranked.

The Deputy Fire Chief (S1) developed a list of interview questions. Each member of the First
Panel was assigned particular questions to ask during the interview. Each member independently
scored each candidate’s response to each question on a scale of one (lowest) to five (highest). S1
denied that S2 had persuaded or directed him to select any candidate.

Complainant was interviewed on June 19, 2014, along with the other applicants. He did not
express any concerns regarding fairness during the interview.

After the interviews concluded, the First Panel then averaged their individual scores to create an
overall score for each candidate. The candidates were then ranked from lowest to highest. The
highest ranked candidate received an overall total score of 21.6 points. Complainant’s score of
18.6, ranked him at #7. The panel recommended the highest scoring candidate, whom S2
selected.

Detail Opportunity

During this selection process, several GS-09 firefighters who worked in the Operations
Department were detailed to the subject position. Complainant was not detailed. Complainant
asserted that he met the minimum qualifications for the detail, because he was a senior
Firefighter and he should have been given the opportunity to accept or decline the detail.

December 2014 Non-selection for Assistant Chief of Operations

Complainant applied for the position through USA JOBS. On October 29, 2014, a Merit
Promotion Certificate of Eligibles indicated that there five candidates on the list, including
Complainant. Complainant was referred by the Human Resources unit to S2, who was to be the
selecting official.

S2 again decided to convene an interview panel (the Second Panel). He named S1 to head the
panel and instructed him to name additional members to the panel. S1 named the Commander,
and three others to the Second Panel. The interview panel consisted of the Commander, S1, and
two Emergency Management Officers.
The Second Panel was provided with the resumes, which were not graded. S2 developed the
interview questions and provided a set of the questions to the panel member. Again, each
member was assigned specific questions to ask during the interviews. S1 provided a model
answer to each question to assist with the consistency of scoring.

Five applicants were interviewed on November 21, 2014, including Complainant.

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After the interviews were complete, the panel managers independently scored each candidate’s
response on a scale of one to five. They then had a group discussion and identified one
candidate, who had the highest score on their individual score sheets. Complainant ranked 4th.
S2 followed the panel’s recommendation and selected the candidate who had been
recommended.

Effective December 14, 2014, CW8 was promoted to Supervisory Firefighter, GS-0081-11, at
the Jacksonville, Florida location. According to the Selection Manager Report, S2 selected
coworker #8 over Complainant, CW 4, CW9 and CW 10.

March 2016 Non-Selection for Assistant Chief of Operations

On January 11, 2016, the Fire Department announced a vacancy on USAJOBS for a Supervisory
Firefighter, GS-0081-11, position. Complainant applied and was referred for consideration. A
panel was convened (Third Panel). The selection process consisted of a resume review and
interviews.

S1 alone scored the resumes of all of the candidates who were selected for an interview.
Complainant was one of five applicants selected for an interview. The entire panel did not see
the resumes or score the resumes prior to the interviews.

On the resume scoring, Complainant earned seven points and the selected employee earned 12
points. There were ten questions for the interview scoring. The maximum total points for the
interviews was 90. After each candidate was finished with his interview, the panel discussed the
candidate’s response to each of the questions and came to a consensus as to the number of points
the candidate received.

Two candidates tied for the #1 overall. S1 felt that the person ultimately selected was the better
qualified candidate of the two, because he had been a supervisor for twelve years, as compared to
seven years by the other candidate.

S1 presented the master scoresheet to S2, who selected the person who had been recommended
by the Third Panel.
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Claim 2 – Grant of 59 Minutes

Complainant averred that on September 3, 2014, his supervisor granted 59 minutes of
Administrative leave to certain Firefighters. Complainant identified the individuals who had been
granted the 59 minutes of leave. The majority had no prior EEO activity.

The Fire Chief averred that he granted the leave to the Fire Prevention Staff for working on a
project. Complainant did not work on the project. Nevertheless, the Fire Chief (S2) responded to
Complainant’s concerns by authorizing 59 minutes of leave to Complainant on a date of
Complainant’s choosing.

Claim 4 – Discussion of Complainant’s EEO Activity with non-management employees

On December 12, 2014, Complainant discovered that S2 had informed CW4 and others that
Complainant filed an EEO case and claimed that he was better qualified than everyone else.
Complainant maintained that he did not say that, and that the Fire Chief had “falsely portrayed”
him as being “arrogant” and caused a hostile work environment.

S2 acknowledged that he discussed Complainant’s EEO complaint with another manager who
was named as a responsible management official. He averred that he did so with only one other
manager and did so because he felt that manager had a need to know. The record shows that
there was discussion by S2 with a lower graded employee (SC) who was at a different location.
S2 conceded that he “generally mentioned Complainant’s Original Complaint to the Station
Chief (SC),” because he felt it had an impact on the Fire Department’s operations and he had
asked SC to cover some of Complainant’s duties.

Claims 6 and 7 (Debrief Request, Award, and Missed Meeting)

Complainant made several requests to S1 and S2 to be briefed on why he had not been selected.
He averred that he never received a response. Management said that it did provide Complainant
with the reasons. Complainant did not know whether others had requested information and also
did not receive a response.

On April 4, 2016, S2 did not attend a scheduled meeting with Complainant. Complainant had
been ordered to attend weekly meetings with S2 since 2015 to discuss issues concerning training
and current assignments. Complainant alleged that S2 did not show up for most of the scheduled
meetings. S2 explained that, on April 4, 2016, he saw Complainant waiting downstairs, but he
was leaving for another task that was scheduled with his own supervisor.

Prior to March 14, 2016, Complainant averred that management did not nominate him for the
“Training Chief of the Year” Award for the year 2013. Complainant had filled in as a GS-11
Training Chief for two years and served as an Assistant Fire Chief of Operations at the GS-11
level, before he was formally promoted in March of 2014.
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He contended that he performed his primary duties as a Training Officer, GS-09, at both the
Mayport and Jacksonville, but he was not given due recognition or any award. Management
testified that the “Training Chief of the Year” award does not exist. There was a Fire Instructor
of the Year Award and that Complainant was not nominated because he did not meet the
requirements for it.

At the conclusion of the investigation of the accepted issues, the Agency provided Complainant
with a copy of the report of investigation. Complainant requested a hearing before an EEOC
Administrative Judge (AJ). Complainant subsequently withdrew his requests. The AJ granted
Complainant’s withdrawal of his hearing requests for both complaints and entered a decision that
allowed the matters to proceed under a single FAD. Consequently, the Agency issued a final
decision for both complaints pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The Agency consolidated the two complaints under one Final Agency Decision. The decision
affirmed the Agency’s dismissal of claims 8 through 10. Regarding the merits of the claims, the
Agency acknowledged that Complainant engaged in EEO protected activity and that the named
officials attested that they were aware that Complainant had engaged in prior EEO activity.
Having shown that he was disadvantaged by the adverse employment actions, the Agency
concluded that he established his prima facie claim of retaliation for both of his complaints.

Next, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions.
Complainant was not selected because he did not rank in the top three candidates and had not
been recommended for selection. There was no “Training Officer of the Year.” Management had
shared information with other management officials who needed to be advised because they were
asked to perform Complainant’s duties. The Agency concluded that Complainant’s allegations
are not supported by the totality of the record and he failed to present any plausible evidence that
would demonstrate that management’s reasons for its actions were factually baseless or not its
actual motivation.

This appeal followed. Complainant contends that the Agency improperly found that it did not
retaliate against and harass Complainant due to his prior EEO activity. Specifically, Complainant
maintains that the Agency applied the wrong legal standard for a hostile work environment
retaliation claim, failed to properly analyze the evidence of pretext, did not articulate legitimate
non-discriminatory reasons, and failed to address all of Complainant’s claims.
The Agency contends that the preponderance of the evidence demonstrates that the Agency did
not discriminate against Complainant and that the Agency applied the appropriate legal standard.
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ANALYSIS AND FINDINGS

Initially, we note that Complainant had an earlier complaint, that was the subject of a decision in
EEOC Appeal No. 0120172263. The issues were similar, but this appeal pertains to
Complainant’s second and third complaints, which were consolidated. Complainant does not
challenge the dismissal of his claims. We will, therefore, address the merits of the Agency’s
decision.

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”).

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
or 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. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Regarding Complainant’s retaliation claim, the record shows that he engaged in prior EEO
activity, and thereafter suffered adverse treatment. Complainant established the elements of his
prima facie reprisal claims.

In this case, however, the Agency articulated a legitimate, non-discriminatory reason for its
actions. The deciding official stated that he chose the highest scoring candidates who had been
recommended by the respective panels. He did not participate at the scheduled meeting because
of a conflict. He had provided feedback to Complainant. There was no Training of the Year
award issued for anyone. The 59 minutes was issued to certain staff for a specific project and
Complainant was not part of the project. Regarding the disclosure, the stated reason was that the
information was shared with individuals who were considered management and who needed to
be informed.

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We find that Complainant did not offer sufficient evidence that these reasons were a pretext for
retaliation. As his evidence of pretext, Complainant disputed management’s rationale for his
non-selections and stated that S2 had made threats to his career. Complainant averred that he
believed that his experience was discounted and that his coworker should have been disqualified
from interviewing as a panelist and disqualified from selection regarding a second position. We
note that the record showed that Complainant was told the rationale for his non-selections, but he
disagreed with the reasons.

Finally, we will consider this as a hostile environment claim. Complainant must establish that he
was subjected to conduct that a “reasonable person” in Complainant’s position would have found
to be hostile or abusive. Complainant maintains that he is not required to show that the treatment
was severe or pervasive. Nevertheless, Complainant must prove that the conduct was taken
because of a protected basis – in this case, prior protected activity. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.

Here, we find that Complainant failed to prove that he was subjected to harassment by the
Agency based on his prior protected EEO activity. There were many qualified candidates who
were not promoted, regardless of their EEO activity. The 59 minutes was extended to members
of a designated unit. There is no evidence that others not in the unit were provided the 59
minutes.

For all of these reasons, we find that Complainant did not establish, by a preponderance of the
evidence, that he was the victim of unlawful discrimination or a hostile work environment during
the period at issue.

Finally, we find that Complainant did not establish that the Agency’s decision was factually
incorrect or wrong as a matter of law.

CONCLUSION

Accordingly, 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 tends 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.
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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.
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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

April 11, 2019
Date