[Redacted], Harold M., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2022002286 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harold M.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022002286 Hearing No. 410-2021-00505X Agency No. 9R1M2100076 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 25, 2022, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Logistics Manager (GS-12) at the Agency’s Air Force Material Command in Robins Air Force Base, Georgia. On January 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (Black), and age (60) when, on September 24, 2020, Complainant was not selected for a Supervisory Logistic Management Specialist (NH-0346-03) position announced under vacancy number LG_ l595957725687. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 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. 2022002286 2 The AJ issued a Notice of Proposed Summary Judgment. The AJ noted that the Agency selected the candidate (Candidate) with the highest combined score based on the applicants’ resumes and interviews. Specifically, Candidate had an interview score of 177.3, as compared to Complainant’s interview score of 65.3.2 Further, Complainant’s interview responses were difficult to understand, and he failed to provide specific examples to demonstrate his experience. The interviewers determined that Complainant did not have the verbal communication skills needed for a senior leadership role. In addition, while Complainant argued that the interview panel discriminated against him, the record showed that his resume, evaluated separately by Human Resources, ranked below Candidate and another applicant. The AJ stated that Complainant can demonstrate pretext for discrimination by showing that his qualifications were plainly superior to Candidate’s qualifications. However, Complainant was not aware of Candidate’s qualifications or education at the time of filing his complaint. The AJ further found that Candidate’s resume demonstrated that she held a position of Supervisory Logistics Management Specialist at the time she was selected for the position of Supervisory Logistic Management Specialist at issue. The AJ ordered the parties to respond to the notice. Complainant timely responded to the AJ’s notice and argued that the ROI was incomplete and not fully developed. Complainant noted that the AJ did not conduct an initial conference and never authorized discovery. Complainant also averred that the selection process was subjective, and a hearing was needed to assess credibility and motivation. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ noted that, while Complainant argued that discovery was necessary, he did not address the substance of the AJ’s notice. In addition, Complainant asserted that the ROI was incomplete because it lacks the application packages, but the Agency provided the documentation, pursuant to an earlier AJ order. As such, the AJ concluded that the evidentiary record was sufficiently developed and granted summary judgment in the Agency’s favor. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of his appeal. The Agency opposed Complainant’s appeal. 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 2 The record also shows that Complainant had the lowest combined score of the six interviewed candidates of 142.3 points, while Candidate received a total score of 254.6 points. ROI at 587. 2022002286 3 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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 he 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. Through his attorney, Complainant repeats his arguments that the ROI was incomplete, and that discovery is necessary. Complainant contends that through discovery, he intends to establish that Candidate was given special preferences and groomed for the position, while he was denied the same opportunities. However, the Commission has held that mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant speculates that Candidate was treated differently, but he has not cited to any evidence to support his contention. Further, Complainant only makes broad assertions for a need to examine the credibility of the Agency’s witnesses, and he has not identified any missing documents from the record. As such, we find that Complainant did not raise a genuine dispute of a material fact, and that the AJ properly concluded that the evidentiary record was sufficiently developed. We note that Complainant did not offer arguments regarding the merits of his claim, and even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022002286 4 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). 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. 2022002286 5 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 19, 2022 Date