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

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2021002777 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fernando K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002777 Agency No. ARSILL19JUL02591 DECISION On April 13, 2021, 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 March 18, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant worked as a Fires and Acquisition Specialist at the Agency’s Capabilities Development and Integration Directorate in Fort Sill, Oklahoma. On September 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of race (African-American) when: 1. On 13 hiring actions ranging from June 2010 through June 2019, he was not selected for promotion; 2. In April 2019, the Agency selected a Caucasian male for the position of Senior Fires and Acquisition Specialist, GS-0301-13, under job announcement 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. 2021002777 2 #SWEK194114472492, with a one-point differential by awarding the Selectee a total of 12 points for a master’s degree that the Selectee has not completed; 3. In March 2011, he was selected for the position of Senior Fires and Acquisition Specialist, GS-0301-13, was not promoted, but the Agency instead promoted a Caucasian male; and 4. Since 2010 through 2019, the Agency has been selecting likeable/favored candidates, mostly Caucasians, instead of selecting more eligible and qualified candidates. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency, in its decision, concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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 Chap. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on race, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for his nonselection is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). To the extent Complainant argues that the Agency did not present any evidence to support its legitimate, nondiscriminatory reasons for its actions, an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretext for discrimination. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Soc. Sec. Admin., EEOC Request No. 05980011 (Apr. 26, 2001). The Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for each of its hiring decisions raised in claims 1, 2, and 3. 2021002777 3 We now turn to Complainant to provide evidence, sufficient to persuade the Commission, that the Agency’s legitimate, non-discriminatory reasons are a pretext for discrimination. The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Burdine, 450 U.S. at 259. Ultimately, an employer has broad discretion to set policies and carry out personnel decisions. Id. Rather, Complainant must prove, by a preponderance of the evidence, that the agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Burdine, 450 U.S. at 253; see Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 511; McDonnell Douglas, 411 U.S. at 804. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. To the extent that Complainant points to a potential error in a scoring matrix, Complainant has not shown that any discrepancy was discriminatory, as opposed to mere error on the part of the Agency. ROI at 1529-30, 1636. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). To the extent that he argues the Agency preselected applicants for some of the vacancies, the Commission has found that even if preselection occurred, it would not be unlawful unless Complainant can show that the preselection was driven by discriminatory animus. See Nickens v. Nat'l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Here, the Commission finds that Complainant relies upon his own assessment of his comparative qualifications, his opinions, and his beliefs as evidence of pretext. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The record is devoid of such evidence. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2021002777 4 As to the claim of a hostile work environment, the Commission further finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. at 17 (1993), Complainant's claim must fail concerning the events outlined in claims 1, 2, and 3. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). As to claim 4, the Commission finds that Complainant has provided no evidence, aside from his own assertions, that any of the non-selections alluded to were due to his protected class. Where Complainant has “adduced no evidence that [Complainant] was harassed because of [their] protected class characteristics,” Complainant’s claim of harassment must fail. Davis v Dep’t of the Army, EEOC Appeal No 01A22812, 01A24469, 01A30558 (Nov. 14, 2003). We find that Complainant has so failed here. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination or hostile work environment. 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 2021002777 5 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). 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. 2021002777 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 August 10, 2022 Date