[Redacted], Marti F., 1 Complainant,v.Ryan D. McCarthy, Secretary Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 14, 2020

Appeal No. 2019004747 (E.E.O.C. Jul. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marti F.,1 Complainant, v. Ryan D. McCarthy, Secretary Department of the Army, Agency. Appeal No. 2019004747 Agency No. ARUSAR16NOV04606 DECISION On May 28, 2019, 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 13, 2019 final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, an Army reservist, was seeking an appointment to the position of Budget Analyst, GS-11, at the Agency’s 310th Expeditionary Sustainment Command Group in Indianapolis, Indiana. On December 30, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American / Caribe Indian), color (Black), national origin (Belizean), religion (Pentecostal), disability (ruptured disc), and age (51), when: 1. On November 22, 2016, she became aware that she was not selected for the position of Budget Analyst, GS-0560-11. 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. 2019004747 2 2. On unspecified dates, she had been denied several civilian and military positions; and was told by a management official “I don’t want you here.” 3. On an unspecified date, after she brought her complaints to the EEO Office, a named Equal Opportunity Specialist refused “to file a charge.” As an initial matter, the Agency dismissed claims 2 and 3 for failure to state a claim.2 However, claim 1 was accepted for investigation. The evidence developed during the investigation established that since April 2016, Complainant’s reservist Section Leader was the Major (Caucasian, born in United States in 1978, Roman Catholic) (“Panelist 1”). He acknowledged that he was aware of Complainant’s race, color, age and national origin, but not her religion. He also observed that Complainant walked with a limp. He also knew the Complainant injured her back because she would ask him to excuse her from drill weekends.3 In July 2016, the Agency posted a Vacancy Announcement NCDE164791931763919 for the position of Budget Analyst, GS-0560-11. Complainant applied. She has a master’s degree in finance and was deemed qualified. On August 24, 2016, Complainant was one of five applicants referred for consideration on the Merit Promotion Certificate of Eligibles. Two of the candidates on the list were noted as current employees. The selectee was one of the two. Complainant was not noted as being a current employee. Both Complainant, the selectee and two of the other non- selected candidates were noted as being veterans. All but one on the List were noted as having veterans’ preference status (“VRA”). The selecting official (African-American, dark, American, born 1966, Baptist) appointed a three- member panel to review of candidates and make recommendations. The panel included: 1) Panelist 1 (Complainant’s reserve section leader - described above); 2) Panelist 2 (African American, brown, Roman Catholic, born 1974); and Panelist 3 (Caucasian, white, national origin- United States, born 1978). Complainant and three others were interviewed. The panel members participated individually via telephone from their individual work locations. Each member asked questions of the candidates. Following the interviews, the panelists provided the scores to the selecting official. The panelists denied that they were influenced either to recommend the selectee or not to select Complainant. 2 On appeal, Complainant does not challenge the dismissal of claims 2 and 3. Therefore, we will not address these matters any further in this decision. 3 In 2015, Complainant ruptured a disc and suffered another injury in January of 2016. She was not able to walk well until she had surgery due to this condition. The record also includes a statement from the Department of Veterans Affairs, documenting that Complainant was entitled to benefits as a disabled veteran. Complainant stated that she has a 60% disability status from the VA. 2019004747 3 According to the panelists, Complainant was rated the lowest of the interviewed candidates. The person selected was rated first. The panelists stated that the selectee’s resume and interview responses were better than Complainant’s and others because the selectee’s responses were more thorough. The panelists individually sent their scores to the selecting official. The selecting official testified that he made the selection and sent the decision to the Human Resources Office for processing. The selectee was laterally reassigned from the position of GS-0343-11 Management Analyst to the position of GS-0560-11 Budget Analyst. Her grade and pay remained the same. The selectee was younger than Complainant, Caucasian, white, American, with no religious preference or identified disabilities. Complainant argued that the selectee was not as qualified as she was because the selectee was a Supply Specialist, which has nothing to do with finance. However, the record shows that the selectee was reassigned from a Management Analyst position. Complainant also noted that she has a master’s degree in finance. The selectee also had a master’s degree, but not in finance. Complainant named two management officials - RMO1 and RMO2 - as the officials responsible for her non-selection (they were neither panelists nor the selecting official). She also claimed that these two had prevented the Complainant from being selected for civilian and military positions in the past. In addition, she stated that during the period of 2011 to 2013, RMO1 said out loud “I don’t want you here.” 4 However, the selecting official and the panelists averred that RMO1 an RMO2 had no role in the selection. The record included the testimony from the two RMOs named by Complainant. RMO1 (Caucasian, white, American, born 1969) stated he had no professional relationship with the Complainant and could not remember if he ever met the Complainant. He averred that he had no role in the selection. RMO2 (Caucasian, white American, born 1950, no religious preference) was a Human Resources official. Her immediate supervisor was the selecting official. She averred that she played no role in the recruitment or selection process and did not influence the interview panel members. She stated that she does not know the identity of the Human Resources Specialist who handled the recruitment action at issue. She acknowledged, however, that she was aware of the Line of Duty investigation that Complainant initiated regarding Complainant’s injury while serving as a reservist that required surgery. 4 Complainant submitted a request for a “Line of Duty” investigation with respect to her injury and asserted that RMO1 interfered with the investigation. RMO1 conceded that she was aware of Complainant’s January 2016 injury and the Line of Duty investigation. 2019004747 4 In addition, the record includes the testimony of a Human Resources Specialist (African American, black, born 1961, Pentecostal) who opined race and color played a role in the selection because she observed “a pattern” as to how “they” treat people of race and color. She stated that the Agency had terminated her, after she had been diagnosed with diabetes, but she was later reinstated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged because Complainant failed to show that the Agency’s articulated reason (it selected the Panel’s recommended candidate who was viewed as the best qualified candidate) was a pretext for discrimination. This appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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 McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, Complainant identified RMO1 and RMO2 as the principal management officials who negatively influenced the panel and selecting official to select the younger Caucasian candidate. However, both RMO1 and RMO2 denied that they had any role in the non-selection at issue. 2019004747 5 Their testimony was further confirmed by the selecting official and the three panelists who made the decisions that resulted in the appointment of the selectee. Instead, the selecting official testified, and the record confirmed, that the selectee was rated as the best qualified by the panelists after the interviews and was chosen for that reason. Complainant failed to prove, by a preponderance of the evidence, that management’s proffered reasons for her non-selection were pretext designed to mask discrimination on the basis of her race, color, religion, national origin, age or disability. While she claims to be better qualified than the selectee, Complainant has not shown that the alleged disparities in qualifications between herself and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). In ruling on pretext, we have also considered the affidavit from a Human Resources Specialist who was in Complainant’s protected groups and similarly believed that Complainant’s race or color might be a factor in the non-selection decision at issue. However, this witness acknowledged that she was not involved in the selection and offered no evidence to support her belief that discrimination was the reason for the action at issue. Finally, Complainant asserted that she was entitled to the position because of her rating as a disabled veteran. However, that claim is outside of the EEOC’s jurisdiction to resolve and, without more, is not evidence of a violation of the Rehabilitation Act. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. 2019004747 6 Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019004747 7 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 July 14, 2020 Date