[Redacted], Earnest G., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022003130 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earnest G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022003130 Hearing No. 480-2022-00089X Agency No. DLAN-21-0163 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 21, 2022, finding no discrimination regarding his 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Crane Operator/Motor Vehicle Operator, WG-11, at the Agency’s Defense Distribution Depot, Defense Logistics Agency in Pearl Harbor, Hawaii. On August 2, 2021, Complainant filed his complaint alleging that he was subjected to disparate treatment based on sex (male) when on June 22, 2021, he learned that he was not selected for the position of Motor Vehicle Operator Supervisor, WS-5703-08, recruited under Job Opportunity Announcement Number DLADist-21-11091018-MP. 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. 2022003130 2 Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without holding a hearing, finding no discrimination. The Selecting Official (SO), Retail Operations Division Head, indicated that he received a Certificate of Eligible from Human Resources Office listing 16 eligible candidates, including Complainant. One candidate failed to reply for an interview and was not considered. The SO stated that he convened a review/interview panel consisted of three officials, including himself. The panel reviewed the candidates’ resumes and rated them in accordance with five job critical elements (i.e., knowledge of supply chain operations, ability to lead, trainer of policies and standards, technical knowledges of transportation, and written communication skills). The panel also conducted phone interviews and candidates were asked the same four questions related to the job duties (i.e., knowledge of transportation policies and procedures, computer literacy, motivation and value serving customers, and motivation and value in order to improve employees’ performance). After the interview (i.e., first interview), Complainant received a total resume/interview score of 69 and was ranked fifth among 15 candidates. The top six total scores were 97, 78, 77, 76, 69, and 61. Panelist #1 indicated that based on his observation as Complainant’s second level supervisor, Complainant’s performance was only average. Panelist #2 indicated that Complainant’s resume had grammatical errors and he did not respond to interview questions in detail. The SO indicated that since there was a broad disparity in the aggregated scores for the top candidate relative to the next three candidates, he convened a second interview panel for the top four candidates. Complainant was not referred for the second interview and thus was not selected. The Agency indicated that the second interview was conducted by Deputy Commander and two other senior management officials. None of the second interview panelists were involved with the first interview. The second interview panelists interviewed three candidates (one was not interviewed because he was not in the local commuting area). After the interview, the panel recommended a Selectee, female, a Supply Technician, GS-7, for the position to the SO because she had the most management and leadership experience and she interviewed very well. Based on the recommendation, the SO selected the Selectee for the position. The AJ found that the Agency did not discriminate against Complainant as alleged. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 2022003130 3 The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. The record indicates that Complainant did not receive one of the top total scores, based on his resume and his interview, and his score was not high enough to be referred to the second interview. Complainant thus was not selected for the position. 2022003130 4 We agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting him for the Motor Vehicle Operator Supervisor position. Complainant indicated that he had more experience at the Agency than the Selectee. However, there is no indication that long years of work experience at the Agency was required for the position at issue. Complainant also stated that he had a supervisory experience, but the Selectee had not. The Selectee’s resume indicates otherwise in that it reveals she worked as a Resident Manager from May 2010, to January 2019, managing resident and vacation rentals. Upon review, we find that Complainant failed to show that his qualifications for the position were plainly superior to the Selectee’s qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022003130 5 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). 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. 2022003130 6 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 January 26, 2023 Date