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

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021005233 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rudy R.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021005233 Hearing Nos. 410-2021-00114X, 410-2021-00106X Agency Nos. 9R1M2000535F21, 9R1M2000562F21 DECISION On September 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 August 23, 2021, final order concerning his equal employment opportunity (EEO) complaints 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 these complaints, Complainant worked as a GS-0346-12 Logistics Management Specialist in the Agency’s Materiel Command, Agency’s Life Cycle Management Center at Robins Air Force Base in Georgia. On May 26, 2020, Complainant filed two EEO complaints2 alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and age (born in 1960) when: 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. 2 Agency No. 9R1M2000535F21 included claims (1) through (5), and Agency No. 9R1M2000562F21 included claim (6). 2021005233 2 1. On January 13, 2020, Complainant learned he was not selected for the GS-0346- 13 Logistics Management Specialist position advertised under vacancy announcement 9R-10585800-90DAY-A1KZ; 2. On February 3, 2020, Complainant learned he was not selected for the NH-0346- 03, Tier 2 Tactical ATS Section Chief advertised under job posting LG_1574264319569; 3. On February 10, 2020, Complainant learned he was not selected for the NH-0346- 03, Tier 2 Global Hawk Sustainment Branch Chief position advertised under job posting LG_1576070064395; 4. On February 14, 2020, Complainant learned he was not selected for the NH-0346- 03, Tier 2 Support Equipment & Vehicles Section position advertised under job posting LG_1573738692589; 5. On May 7, 2020, Complainant learned he was not selected for the NH-0346-03, Tier 2 Supervisory Logistics Management Specialist position advertised under job posting LG_1586267585229; 3 and 6. On January 28, 2020, Complainant learned he was not selected for the GS-0346- 13 Logistics Management Specialist position advertised under vacancy announcement 9R-10589864-710137-KP. After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing for both complaints, which were jointly processed by the AJ. The AJ ordered the Agency to supplement the record with three documents. The Agency supplemented the record as ordered. The AJ issued a Notice of Intent to Issue a Decision without a Hearing. Complainant responded to the Notice of Intent. The AJ ordered the Agency to further supplement the record with two documents. The Agency provided the documents. The AJ issued an Amended Notice of Intent to Issue a Decision without a Hearing. Complainant responded to the Amended Notice of Intent. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the positions at issue was that his interview responses were not as strong as those of the selectees. Although Complainant characterized an interview panelist’s statements that Complainant failed to demonstrate the necessary verbal communication skills during the interview as evidence of discrimination based on race, the AJ found that Complainant mischaracterized the interview panelist’s statements. 3 Complainant states on appeal that he intended to raise reprisal as a basis for this claim but was precluded from doing so by the AJ’s decision to deny discovery. According to the record, Complainant did not request to amend his complaint to allege discrimination based on reprisal, nor did he mention his intent to allege discrimination based on reprisal in his responses to the Notice of Intent or the Amended Notice of Intent. 2021005233 3 According to the AJ, the interview panelist’s statement showed that she did not believe Complainant’s interview responses were sufficient for him to be selected and did not show that Complainant’s race, color, sex, and/or age motivated the selections. Regarding Complainant’s contention that discovery was necessary to further develop the record, the AJ determined that, after the Agency supplemented the record as ordered, the record was sufficiently developed, and Complainant’s request for discovery was beyond the scope of reasonable development of evidence on the issues raised in his EEO complaints. The AJ concluded that Complainant failed to identify a genuine issue of material fact or dispute relating to credibility and could not establish that the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the positions in question constituted pretext for discrimination. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that the AJ failed to address the genuine issues of material fact that he raised. According to Complainant, denying discovery is antithetical to the federal sector EEO process, and the AJ’s statement that there were no genuine issues of material fact or issues of credibility was conclusory and contradicted by Complainant’s responses to the Notice of Intent and Amended Notice of Intent and Complainant’s statements in the investigative record. Complainant argues that the AJ failed to show that there were no genuine issues of material fact and requests that the matter be remanded for discovery and a hearing. 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 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). To the extent that Complainant argues that the matter should be remanded for discovery, the Commission cannot agree. Discovery is not a fishing expedition, and as Complainant has not proffered what specific document exclusion he seeks to remedy, nor the specific relevant evidence that he would obtain, that was not available to him without discovery, we find that the AJ did not abuse their discretion in issuing the summary judgment. See Kathy D. v. U.S. Postal Serv., EEOC Appeal No. 2020004759 (Oct. 12, 2021). 2021005233 4 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue. Complainant asserted that he was more qualified than the selectees based on his 34 years of experience, his education, and his certifications. In a selection case, a complainant can attempt to prove pretext by showing that his qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996). The Commission has consistently held that years of service, in and of itself, does not make one the most qualified candidate for a promotion and does not render one more qualified than those with less Agency experience. See Kenyatta S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161689 (Sept. 21, 2017). Upon review, Complainant has not shown that his qualifications were plainly superior to those of selectees. Although Complainant alleged that one or more of the selectees were preselected, as the AJ noted, preselection alone is not evidence of discriminatory animus. See Nickens v. Nat’l Aeronautics Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Complainant also expressed disagreement with how his resume and interview responses were scored and asserted that he was not selected based on his race, color, sex, and/or age. However, such disagreement and unsupported allegations and speculation is insufficient to establish pretext or create a genuine issue of material fact. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021005233 5 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. 2021005233 6 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 7, 2023 Date