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

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2022000818 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeramy R.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2022000818 Hearing No. 410-2020-00488X Agency No. 9R1M2000001G21 DECISION On November 18, 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 October 14, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nondestructive Tester, WG-3705-11, at the Agency’s Nondestructive Inspection (NDI) facility in Warner Robins, Georgia. On January 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (dark-skinned), and age when, on May 12, 2019, he became aware that he was non-selected for the position of Nondestructive Tester Leader, WL-3705-11, Vacancy Announcement Number 9R-10430670- 396946-JH. 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. 2022000818 2 The Agency accepted the complaint and conducted an investigation that produced the following pertinent facts. Complainant applied, as an internal candidate, for the above-cited Vacancy Announcement Number. Complainant’s name appeared on a Certificate of Eligibles, issued March 15, 2019. Report of Investigation (ROI) at 103-04. The record indicates that nine of these applicants, including Complainant, were chosen to be interviewed, though one of those nine applicants did not show for his interview. Id. at 110-53. Complainant then found out in May 2019 that he was not selected. Following an initial resume screening and grading, the selection process consisted of an interview. ROI at 212; 220. In terms of the interview process, NDI Production Team Lead (“Team Lead”), the selecting official for this position, drafted the interview questions. Id. at 212. The questions were: 1. Describe your experience coordinating and leading NDI teams in planning and completing work assignments using Magnetic Particle/Liquid Penetrate, Eddy Current[,] and Industrial Radiography/Ultrasonic inspection techniques and the equipment used to perform these tasks. (70 pts max) 2. Describe your experience with Nondestructive testing inspection methods on various AMXG aircraft. (60 pts max) 3. Describe your experience with implementing Art of the Possible (AoP) process improvement initiatives (lean, CPI, 6 “S” etc.) and how you incorporated AoP into your team processes. (50 pts max) 4. Describe your experience leading and training lower wage[-]graded personnel on Nondestructive testing inspection methods on AMXG aircraft. (20 pts max) ROI at 107-08. The interview panel consisted of Team Lead plus NDI Supervisor (“Supervisor”) and 558th Quality Assurance Chief (“Chief”). ROI at 212; 219; 229-30. Team Lead said the panel made a recommendation, which he followed. ROI at 212. Supervisor and Chief both said they did not make a recommendation but just scored the interview. ROI at 220; 230. Both Supervisor and Chief indicated they did not know if the decision was unanimous or who the other panelists recommended. Id. Team Lead attested he selected Selectee based on his interview score. ROI at 212. Team Lead emphasized that while Complainant had more experience, Selectee’s scoring on the interview and his final score made him the finalist. Id. at 213. Supervisor acknowledged that Complainant was ranked first before Selectee got chosen to interview. ROI at 221. At that interview, Selectee “hit almost every question in its entirety[,]” Supervisor said. Id. 2022000818 3 558th Production Support Flight Chief/NH-03 Industrial Production Manager (“Flight Chief”) was the approving official for the selection. ROI at 235. He attested that, to the best of his knowledge, the selection was done “by the book.” Id. Complainant believed he should have been selected for the position based on his experience at NDI, the amount of time he has served on aircrafts, his working relationship with the engineers, and his taking the lead on jobs that no one else wanted. ROI at 209. Complainant further stated he was more qualified than Selectee because he has more education and experience, which includes all five NDI Level-2 Certifications. Id. Complainant added that he had trained Selectee. Id. Complainant also received challenge coins and awards in recognition of his work. Id. According to Complainant, he was told that Selectee did not submit his SF-50, which was supposed to immediately remove an applicant from consideration, yet Selectee was allowed to re-apply. ROI at 207-08. Moreover, Complainant attested, Selectee was on temporary duty when the interviews occurred. ROI at 208. However, Selectee was allowed to interview when he returned. Id. Complainant reported that, after the selection had been made, he was told by Team Lead that he (Complainant) and Selectee had been “neck and neck” in the running. ROI at 209. Team Lead was further said to have told Complainant that Selectee’s responses “blew [Complainant] out of the water.” Id. When asked about Selectee’s late interview, Flight Chief pointed out that there is nothing that he or Team Lead can do to override Human Resources. ROI at 235. He further explained that a different applicant (“Applicant”) had made inquiries when Applicant was not on the tally of names that is sent by Human Resources. Id. Once that was discovered, Human Resources decided to add several names, including Selectee’s. Id. Management Analyst added that two applicants were originally left off the Certificate due to an error by the staffing agency that determined which applicants were qualified. ROI at 238. Management Analyst explained that there were two positions of the same series, issued at the same time. Id. One of the omitted applicants appeared on one Certificate but not on the other. Id. When this was discovered, the staffer (“Staffer”) responsible was asked about it, Management Analyst reported. Id. Management Analyst said that Staffer realized her error and added the applicant to both Certificates. Id. Selectee’s name was added after a review was conducted. Id. However, Management Analyst emphasized that Selectee did not make the inquiry and did not realize he was not on the list. Id. Management Analyst also stated that she explained what happened to Team Lead and the rest of the interview panel and informed them that the additional candidates added to the Certificate would need to be interviewed, without informing the other applicants. ROI at 238. 2022000818 4 Yet another applicant for the position in question (“Applicant 2”) gave an affidavit in which he stated that the feeling among the NDI employees was that Selectee was not initially interviewed because he had completed his application incorrectly. ROI at 240. Applicant 2 also thought Selectee was hand-picked for the job, adding that he believed that Selectee had been pre- selected. Id. Complainant also alleged that Supervisor had coached Selectee as well as a female applicant (“Applicant 3”) prior to the interview. ROI at 208. Supervisor reportedly had given Selectee and Applicant 3 the resume matrix. Id. Supervisor had also supposedly told them what to say in the interview and how to put the interview questions in order. Id. Complainant opined that there was nepotism involved. Id. In response, Supervisor stated that Selectee and Applicant 3 were in the Emerging Supervisors Development Program, and it was her job to mentor and train them. ROI at 222. Supervisor denied any knowledge of the resume matrix, let alone of giving it to Selectee. Id. Complainant believed he was not selected because of his race because Supervisor influenced the hiring process. ROI at 210. At his base, Complainant said, if a person does not stand up for himself/herself, management will love that employee. Id. But an employee who fights for his/her rights or challenges management, will become an outcast. Id. Complainant felt that he was outcast by Supervisor. Id. Complainant believed he was not selected because of his skin color because it was a known fact that many people at NDI are racist. ROI at 210. Some, Complainant said, have parties outside of work and discuss things that may not be proper about people who look like Complainant. ROI at 210. Complainant believed he was not selected because of his age because Selectee is four or five years younger than Complainant and came to be favored by the supervisors. ROI at 210. Supervisor was one of Selectee’s sponsors. Id. According to Complainant, Supervisor also sponsored another male candidate and Applicant 3. Id. Complainant said that everyone Supervisor sponsors, becomes a supervisor. The record also contains the scoring matrix used in this selection. ROI at 106. According to this matrix, Complainant scored an 81 on the resume review and a 126 on the interview, for a total of 207 points. Id. Selectee scored a 78 on the resume review and a 184 on the interview, for a total of 262 points. Id. 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 timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2022000818 5 ANALYSIS AND FINDINGS Standard of Review 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated a legitimate, nondiscriminatory reason for its action. The Agency explained that it selected Selectee based on his interview score. While Team Lead, the selecting official, acknowledged that Complainant had more experience, Selectee’s scoring on the interview and final score made him the finalist. 2022000818 6 As to interviewing Selectee late, the Agency clarified that there had been an error by a staffing agency that caused some candidates to be left off the Certificate. Furthermore, as Flight Chief (the approving official) maintained, Team Lead and the other interview panelists had no choice but to follow guidance from Human Resources, once a new Certificate, that included Selectee’s name, was added to the list of candidates to interview for the position. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency’s reason was a pretext for discrimination. In a non-selection case, Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dep’t of Veterans Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). In the case before us, Complainant listed his relevant skills, education, experience, and work history. Complainant highlighted, among other things, his experience at NDI, the amount of time he has served on aircrafts, his taking the lead on jobs that no one else wanted, his greater education and experience, and the fact that he had trained Selectee. It is undisputed by the Agency that Complainant was a highly-qualified candidate based on his experience and skills, but the Selectee was as well. Selectee scored just three points lower on the resume review, which was performed outside of the purview of Team Lead, Supervisor, and Chief, who performed the interviews. We note that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Env’t Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). We have also found that agencies may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). We thus find that Complainant has not shown that he was the plainly superior candidate. Pretext can also be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Complainant points to what seem like irregularities in the selection process, such as the fact that Selectee purportedly did not provide an SF-50 but was not disqualified from consideration and that Selectee was allowed to interview after the other applicants did. Complainant also maintains that Supervisor coached Selectee and gave him the resume matrix, which resulted in an unfair advantage. Insofar as Complainant is alleging that the selection process was tainted by favoritism and/or that Selectee was pre-selected, the Commission has found that an agency may pre-select a candidate as long as the pre-selection is not premised upon a prohibited basis. Michael R. v. Dep’t of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). We cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, 450 U.S. at 259. Upon review of the record in its entirety, we find that Complainant has not shown by a preponderance of the evidence that the Agency’s explanation was pretext, designed to conceal discriminatory animus. 2022000818 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 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. 2022000818 8 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. 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 March 16, 2023 Date