[Redacted], Julian L., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 16, 2023

Appeal No. 2022000362 (E.E.O.C. Feb. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julian L.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000362 Agency No. 21-65886-00426 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 October 4, 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. The Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to his complaint, Complainant was employed as a General Engineer, GS-0801-13, with the Manufacturing and Quality Division at the Fleet Readiness Center Southeast in Jacksonville, Florida, and his first level supervisor was S1. Complainant applied for the position of Aerospace Engineer, GS-0861-13, Job Announcement ST-10940794- 21-NCH. The vacancy announcement showed that there were six vacancies in various departments. Although he was ranked first by the Selection Advisory Board (SAB) for two of the vacancies, Complainant was not selected for either. The selecting official was S2, Fleet Support Team Lead Engineer, GS-0801-15. Two White individuals were selected for the vacancies for which Complainant was ranked first. Complainant learned of his nonselection on or about January 27, 2021. 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. 2022000362 2 Complainant filed a complaint alleging that he was discriminated against on the bases of race (African American) and reprisal when, on January 27, 2021, he was not selected for the Aerospace Engineer position. After its 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 (EEOC or Commission) Administrative Judge. Complainant did not make an election; therefore, the Agency issued a final decision concluding that Complainant failed to prove that it subjected him to discrimination as alleged. This appeal followed. Complainant alleged that shortly after he learned of his nonselection, he emailed S1 asking if he had any influence over the selection or had made any statements about his candidacy for the position. S1 responded that he had no insight into the process but recommended that Complainant speak with S2. On March 3, 2021, Complainant stated that S2 told him that the SAB had ranked Complainant first for two of the six available positions in S2’s division, i.e., Stress Analyst and Structures Engineer. S2 explained that he had the authority to override the SAB recommendations and that he did so because: (1) when asked about the impact of Complainant leaving his current position, S1 told S2 that the impact would be significant; and (2) the two vacancies were non-supervisory and would, therefore, not be considered a promotion in his opinion. As noted by Complainant, S2 maintained that he did not select Complainant for either of the positions because of the significant impact that Complainant leaving his current position would have on the organization, and because this was a lateral move that would not contribute to a future promotion. S2 asserted that the Executive Director, A1, required selecting officials to consider the potential impact of any selections that would move an employee between departments. Based on his interpretation of A1’s verbal policy, he spoke to S1 and learned that the impact of Complainant leaving would be significant because Complainant was responsible for the digital shop floor implementation for two production lines and the division had no one else to take over that role. S1 stated that he had no one in his division who could perform Complainant’s duties; therefore, he did not believe he could mitigate the impact of his loss. Additionally, S2 felt that Complainant’s selection was equivalent to a lateral transfer to a non- supervisory position that would not contribute to future promotion potential.2 S1 maintained that he has been Complainant’s supervisor since 2018. He denied making any recommendations or having any decision-making authority for the positions Complainant sought but he did acknowledge that he spoke with S2 about the impact of Complainant leaving his division. S1 stated that Complainant was leading a major project that had an October 1, 2021 deadline, and that it would be difficult to meet that deadline if Complainant left. S1 maintained that he would support Complainant leaving after the project was complete or if he could be replaced without a loss of efficiency. 2 As noted above, Complainant was a GS-13, and the vacancies were also at the GS-13 level. 2022000362 3 A1 stated that, when she assumed her position, she verbally implemented a policy which required her approval for lateral reassignments and the concurrence from both the gaining and losing organizations. She maintained, however, that this policy did not apply to competitive recruitment actions whether a lateral move or a promotion, like the one at issue here, and she believed that a GS-15 would have understood this distinction. A1 stated that she had not observed anything that led her to believe that S2 was biased based on race or prior EEO activity and she did not know whether there was anything discriminatory in S2’s decision not to select Complainant. She indicated that she would work to clarify any confusion surrounding her lateral reassignment policy. B1, Supervisory Human Resources Specialist, stated that she believed that it was inappropriate for S2 to bypass SAB’s recommendations because of the potential impact to S1’s department or because the position would not be considered a promotion. She felt that there were options available to mitigate a staffing impact while still effecting the selection. On appeal, Complainant, citing the statements of S1, A1, and B1, argues that there was no justifiable reason for S2 to not select him, because S1 provided no negative information to S2. According to Complainant, “[i]t was just the opposite - and Complainant is penalized for doing too good of a job.” On appeal, the Agency argues that the Commission should affirm its final decision. ANALYSIS AND FINDINGS 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022000362 4 Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established a prima facie case of race and reprisal discrimination, we find that the Agency provided a legitimate, nondiscriminatory reason for its actions. S2, apparently mistakenly, thought that A1’s policy about lateral reassignments applied to the competitive recruitment and selection process at issue here because there was no promotion or supervisory responsibilities involved. After he spoke to S1 about the impact that Complainant’s departure would have on his operation, S2 decided to not follow the SAB recommendations, because S1 opined that Complainant’s departure would affect his ability to meet a production deadline regarding a major project. Complainant offered no persuasive evidence of pretext. Complainant argued that he was more qualified than the selectees, but that is not in dispute.3 Furthermore, he cites the testimony of A1 and B1 that indicate that S2’s interpretation of A1’s verbal policy and Agency policies was wrong. Pretext analysis, however, is not concerned with whether the actions were unfair or erroneous but whether the actions were motivated by discrimination. Gregg B. v. Dep’t of the Army, EEOC Appeal No. 0120151783 (June 7, 2017). In this case, Complainant argues that the Agency’s actions were motivated by his race and prior EEO activity but other than speculation he does not identify evidence that would establish that discrimination played a role here. CONCLUSION The Agency’s final decision finding no discrimination is AFFIRMED. 3 The Agency, in its final decision, concedes that, “[e]xamination of Complainant’s and the selectees’ resumes supports Complainant’s assertion that he was best qualified for those two positions . . . .” 2022000362 5 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. 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). 2022000362 6 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 February 16, 2023 Date