[Redacted], Alan F., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2022003440 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alan F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022003440 Hearing No. 420-2021-00223X Agency No. ARANAD21JAN00414 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 February 7, 2022, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Mechanic, WG-5803-11, at the Agency’s facility in Anniston, Alabama. On March 11, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (year of birth: 1969) and in reprisal for prior protected EEO activity when: 1. On or around December 1, 2020, he found out he was not selected (not referred) for the Heavy Mobile Equipment Mechanic Inspector Position, WG-5803-12, Job 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. 2022003440 2 Announcement SCAH207481984629, but he used the same resume in a previous application for which he was referred; and 2. On or around December 22, 2020, he asked via USAJOBS, about not being referred: He was told his resume “did not reflect the required skills” sought by management and after a second review, although Complainant “listed he held a WG-10 and WG-11, as a Heavy Mobile Equipment Mechanic and Machine Tool Operator, the duties were lumped together and qualification could not be determined.” At the conclusion of the investigation, 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). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 23, 2021, motion for a decision without a hearing and issued a decision without a hearing on February 7, 2022. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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 factfinder could not find in Complainant’s favor. 2022003440 3 We find Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him. Complainant alleged that the Supervisory Quality Assurance Specialist (SQ) discriminated against him based on age and prior EEO activity because he was the selecting official for a prior position Complainant applied for and was not selected for. Complainant named SQ as the Responsible Management Official in a prior EEO claim. However, the evidence shows that on November 8, 2020, SQ left the organization on military orders. Before he left, he worked with the Human Resource Specialist (HR) to provide all the documents that would be used in the selection process and gather the panel to grade the candidates and make a selection for the position. However, he turned the responsibility over to the Selecting Official (SO) upon his departure and was not involved in the selection process. The evidence further shows that HR conducted the initial resume review to identify candidates that would be referred. She stated that she did not submit Complainant’s resume for referral because his duties were lumped together and qualifications could not be determined for his work history. She asserts she has never met Complainant, has no organizational relationship with him, and thus, has no knowledge of his age or prior EEO activity. Complainant asserts the nonselection was discriminatory and retaliatory because he previously used the same resume to apply for the same position and was referred. However, there is no evidence to suggest that the reviewing officials or the candidates were the same. Thus, HR’s subjective view that his resume did not clearly describe his qualifications does not persuasively suggest she was motivated by discriminatory animus. Complainant also alleges he once heard SQ make a statement about giving more positions to younger people and getting the older people out. Complainant has not provided any evidence of this, and SQ denies making any such statement. However, even if SQ made such a statement, the evidence shows he was not involved in the selection process. Complainant has not persuasively shown that he was excluded from selection due to his age or prior EEO activity. He has not provided any evidence other than his own opinion that management was motivated by discrimination. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Thus, Complainant fails to prove by a preponderance of the evidence that management’s legitimate, nondiscriminatory reasons for not selecting him were a pretext for discrimination. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 2022003440 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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). 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). 2022003440 5 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 September 12, 2022 Date