U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jules H.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (National Highway Traffic Safety Administration), Agency. Appeal No. 2022003739 Hearing No. 570-2019-0744X Agency No. 2018-27863-NHTSA-02 DECISION On June 21, 2022, 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 May 27, 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. During the relevant time, Complainant was an applicant at the Agency’s National Highway Traffic Safety Administration in Washington, D.C. On May 30, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Syrian), religion (Muslim), and in reprisal for prior protected EEO activity when, on March 23, 2018, his tentative offer of employment was withdrawn. 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 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. 2022003739 2 Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request and remanded the claim to the Agency for issuance of a final decision. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In Complainant’s arguments in support of his appeal, he argues that the Agency’s decision in the withdrawal of his employment offer was for reasons not related to their legitimate, nondiscriminatory reason as outlined below. He further alleges, without evidence, bias on the part of the AJ. He does not, however, specifically contest the AJ’s dismissal of the hearing request. Therefore, this issue is not on appeal before the Commission and will not be further addressed herein. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120111541 (June 12, 2014); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). 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 EEO MD-110, at Chap. 9, § VI.A. (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 withdrawing his tentative offer of employment 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). The Agency’s legitimate, nondiscriminatory explanation for withdrawing the tentative offer was that his background check revealed that Complainant was terminated by a different agency during his probationary period. ROI at 146. Lead Employee and Labor Relations Specialist (Specialist) averred that she reviewed a copy of Complainant’s letter of termination from a prior agency. ROI at 146. Specialist stated that she wanted to clarify the reason for his termination because Engineering is a broad title, and a work that was not a good fit at another agency did not necessarily imply that Complainant could not successfully work for the Agency. ROI at 146. 2022003739 3 The letter of termination revealed, however, that Complainant was dismissed not only performance, but because of conduct issues. ROI at 54, 146. As Complainant was terminated both due to performance and conduct, the tentative offer was withdrawn. ROI at 147. As the Agency has proffered a legitimate, nondiscriminatory reason for withdrawing the tentative offer, we now turn to Complainant to provide evidence that the Agency’s legitimate, nondiscriminatory reason was merely pretext for discriminatory conduct. We find that he has not done so in this case. The Commission finds that the record is devoid of any evidence that the Agency’s action was due to discriminatory animus, aside from Complainant’s suppositions, assumptions, and inferences. Ultimately, a 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 252-53; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); . St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “[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)). 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 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. Therefore, Complainant must present enough evidence to raise a genuine issue of material fact as to whether the responsible management officials were motivated by unlawful considerations of discrimination in connection with the claim as articulated. See Reeves, 530 U.S. at 143; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. 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). We find that the record is devoid of such evidence in this case. 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. 2022003739 4 CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2022003739 5 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. 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 22, 2022 Date
