[Redacted], Walton Z., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2022001326 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Walton Z.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2022001326 Agency No. 2021-WHSFSD-024 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 November 10, 2021 final decision concerning an 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 accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Maintenance Mechanic for the Agency’s Facilities Services Directorate at the Pentagon Building Management Office. On January 4, 2021, Complainant’s second-line supervisor, the Supervisory Facilities Operations Specialist (hereinafter “Operations Specialist”) informed the staff that Employee A would temporarily perform as the 1st Shift Supervisor for the Pentagon Mechanical Systems Program (PMSP). Weeks later, on February 12, 2021, Operations Specialist shared that Person B was serving as PMSP 2nd Shift Supervisor and Person C as the Electronics and Industrial Controls Mechanic Work Leader for PMSP, both on a temporary basis. 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. 2022001326 2 Believing that he was discriminatorily excluded from consideration for the three temporary supervisory/work leader positions referenced ab0ve, Complainant filed an EEO complaint based on race (African American), color (Black), and in reprisal for prior protected EEO activity. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found no discrimination or unlawful retaliation was established. The Agency noted that Complainant believed he was denied the opportunity to compete for the positions because they were not advertised. The Agency stated that Complainant was unaware of the selectees’ qualifications, but that Complainant nevertheless contended he was “equally qualified”. A Human Resources Specialist stated, however, that temporary promotions of 120 days or less do not require competition, citing the Agency’s “Administrative Instruction 33”. According to Deputy Operations and Maintenance Manager (hereinafter “Manager”), Complainant’s third-line supervisor, while he was not involved in the selections, Operations Specialist discussed his intention to rely on performance appraisals - the selectees received scores of “5 - Outstanding”, while Complainant earned a “3 - Fully Successful”. Additionally, the decision noted that Person B was already a Work Leader and therefore had some supervisory skills. Person C was an EICM, working with electronic control circuits and the Building Automation System (BAS), while Complainant’s job duties concerned physical infrastructure. Therefore, Person C was deemed a natural choice for the EICM Work Leader temporary promotion. The Agency concluded that management was not required to post or announce the temporary positions, and the selections were based on past performance, technical expertise and managerial capabilities. Complainant filed the instant appeal. 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”). 2022001326 3 Timeliness of Hearing Request EEOC Regulation 29 C.F.R. § 1614.108(f) states that an Agency shall provide the complainant with a copy of the ROI and “shall notify the complainant that within 30 days of receipt of the investigative file, the complainant has the right to request a hearing”. Moreover, where a complainant has designated an attorney as her representative, the time frames for receipt of materials are calculated from the time of receipt by the attorney. See 29 C.F.R. § 1614.605(d). Here, the parties do not dispute that the ROI and notice of the right to request a hearing was received by the office of Complainant’s attorney on August 23, 2021. Therefore, a timely request for a hearing needed to be made by September 22, 2021. The request for a hearing, however, was not submitted until two days later, on September 24, 2021. On appeal, Complainant’s attorney argues2 that the thirty-day time limit is triggered by her “actual receipt” of the ROI. Complainant’s attorney stated that, due to the COVID-19 pandemic, her office was working virtually. Consequently, the ROI was sent from her office to her, by one- day Priority Mail, on August 25, 2021 and received on August 26, 2021. She contends that, as a result, the time limit did not expire until September 25, 2021. The Commission is not persuaded. The record reflects that the Agency properly sent the ROI and notice to request a hearing to the Attorney’s address of record, where it was received by an agent of the attorney. In similar circumstances, the Commission has considered such deliver to constitute receipt by the attorney. See Swift v. United States Postal Service, EEOC Appeal No. 01953171(Nov. 27, 1995) (although attorney argued he did not sign for receipt of notice, Commission found mailing to attorney’s address of record and signature by agent for attorney sufficient for timeliness purposes); Hicks v. Dep’t of the Treasury, EEOC Appeal No. 01973885 (July 13, 1998) (receipt by paralegal in the office of attorney considered receipt by Complainant’s attorney); Miles N. v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120173073 (Jan. 24, 2018) (receipt by individual at attorney’s office sufficient, despite attorney’s assertion that she was out of the office at a funeral). Therefore, we find that Complainant’s hearing request was untimely and the Agency properly issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2 We note that in her appeal brief, Complainant’s attorney repeatedly uses the term “appeal” when meaning “hearing request”. Additionally, it appears she initially filed the appeal of the Agency’s final action with the Washington Field Office, which handles hearings, rather than the Office of Federal Operations, as instructed in the decision. 2022001326 4 Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, Complainant alleges he was discriminated against when he was not considered for three temporary promotions when they were not announced or posted. The Agency has proffered a legitimate non-discriminatory reason; namely, that there is no requirement to announce temporary promotions that are for 120-days or less. The record contains an affidavit from a Human Resources Specialist attesting to this, citing particular Agency policy, and noting that this is why the temporary promotions at issue were not processed by her. On appeal, Complainant challenges the quality of the investigation. For example, Complainant argues that the Agency’s decision “heavily relies” upon testimony from Operations Specialist, yet the ROI reflects he was not interviewed. Regarding Manager’s testimony, Complainant disputes his assertion that he was not involved in the selection process and relied on Operations Specialist to make the decision. Complainant argues this statement is “convenient and self- serving”. Rather, the record indicates that Operations Specialist is no longer employed by the Agency, which explains why Manager’s testimony was taken and relied upon, despite his limited involvement with the temporary promotion decisions. 2022001326 5 Manager attested that, although he did not make the selection, Operations Specialist shared with him the intention to rely upon performance appraisals. On appeal, Complainant criticizes the choice, stating “it makes little sense for the department to limit the selection criteria to those appraisals.” However, such disagreement does not establish discrimination. Similarly, Complainant contends that the performance appraisals for “all department employees” should have been gathered, rather than only his and the selectees. Complainant has not provided any persuasive reason for such a broader collection of information. The record reflects, and Complainant does not dispute, that his performance evaluation rating was lower than those of the selectees. Moreover, the Agency decision noted that, in addition to the higher ratings, the selectees had superior experience. Person B, selected for the 2nd Shift Supervisor role, was performing as a Work Leader, and gaining supervisory skills, while Complainant was not. Person C, chosen for the EICM Work Leader position, was an EICM, which differed in job responsibilities than Complainant’s role as a Maintenance Mechanic. While Complainant argues on appeal that his first-line supervisor was not involved in the selection, there is no indication in the record that his input was required. Likewise, Complainant cites his first-line supervisor’s testimony that Complainant was ready for a supervisory role. This alone does not establish that his non- selection was discriminatory. The record reveals that Complainant’s first-line supervisor also attested that he did not believe Complainant’s non-selections for the temporary promotions were due to his protected bases. In fact, Complainant himself admitted that he was unaware of the selectees’ qualifications, but simply believed he was “equally qualified”. This is insufficient to meet his burden in proving that the Agency’s decisions were motivated by Complainant’s race, color or prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding no discrimination or unlawful retaliation. 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. 2022001326 6 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. 2022001326 7 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 20, 2023 Date