[Redacted], Zachery V., 1 Complainant,v.Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2021004258 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V.,1 Complainant, v. Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 2021004258 Agency No. 21-001 DECISION On July 21, 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 June 21, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS- 0510-12 in the Agency’s Office of the Chief Financial Officer, Financial Operations Department, Collection and Compliance Division (CCD), Premium Operations Branch in Washington, D.C. On November 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (63), and reprisal for prior protected EEO activity when on or about August 27, 2020, Complainant received an email notice that he was not selected for promotion to the position of Financial Management Specialist, GS-0501-13, in the Technical Enhancement Branch (TEB) in CCD 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. 2021004258 2 under Vacancy Announcement No. FOD-2020-0002, by the selecting official, the Supervisory Accountant, GS-0510-15. 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 Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, 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. CONTENTIONS ON APPEAL On appeal, Complainant requests that the Commission vacate the Agency’s decision and enter a finding of discrimination. Complainant contends that it was clear that management blocked his promotion due to his protected classes and in reprisal of his prior protected activity. Complainant provides a detailed reiteration of previously provided arguments. Complainant also requests that if the Commission does not enter a finding in his favor, then to remand the matter for further investigation. Complainant asserts that the investigation failed to adequately develop the record. For example, he asserts that there was insignificant information regarding the requirements of the position. Complainant also believes that his witnesses and their testimonies were not properly considered. In response, the Agency asserts that the investigation was adequately developed and noted that Complainant had a prior opportunity to correct the record or request a hearing. The Agency asserts that the Agency accurately reflected the record in its decision, and requests that the Commission affirm its final decision. 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 Chap. 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”). ANALYSIS AND FINDINGS As a preliminary matter, we note that Complainant raised concerns with the processing of his complaint. Complainant claims on appeal that the investigation was inadequate. For example, Complainant stated in his belief that testimony from his witness were disregarded and that the 2021004258 3 record failed to adequately investigate the details of the position. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. We note that Complainant failed to request a hearing, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. Furthermore, Complainant was provided with an opportunity to further develop the record at the conclusion of the investigation but failed to do so. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Regarding the merits of the case, 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, sex, age, and in reprisal 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 his non- selection 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 provided legitimate, nondiscriminatory explanations for not selecting Complainant Namely, the Agency indicated that: he did not interview as well; he did not relay details or instill confidence for being able to work comfortably individually and/or collaboratively with different teams; and his response towards conflict resolution was to immediately engage with a supervisor instead of attempting to resolve the situation himself first. Report of Investigation (ROI) at 95. The Supervisory Accountant also noted that the Selectee had been an integral part of the TEB and that she had become the go-to team member for high priority and/or time sensitive tasks, which strengthened her overall candidacy. While Complainant was qualified for the position, the Supervisory Accountant found the Selectee to be the better overall candidate. Additionally, the Supervisory Accountant noted that Complainant was not as quick to respond by email when initially contacted about the vacancy; did not successfully utilize Microsoft Teams during the interview; and focused on his belief that his tenure with the Agency demonstrated that he was deserving of the promotion. ROI at 92; 98. While not integral for the role, these aspects left a less than ideal impression. Complainant argued that the reasons provided were pretext. Complainant can demonstrate pretext by showing that his qualifications for the position were plainly superior to the Selectee. Hung P. v. Dep’t of Vet. Aff., EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2021004258 4 In this matter, Complainant argued that he had clearly established that his qualifications were plainly superior to those of the Selectee, noting for example his years of service. ROI at 72. Complainant also asserted that the Agency had a history of questionable promotion practices, citing a lack of African American supervisors and a supporting statement from his colleague, the Division Manager. ROI at 111. Complainant cannot demonstrate pretext simply based on his subjective assessment of his own qualifications. See Palmer N. v. Dep't of Def., EEOC Appeal No. 0120140070 (Mar. 18, 2016). In addition, the Commission has long held that a person's length of experience does not mean that they are better qualified. See Macready v. Dep’t of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). Additionally, the mere fact that one of Complainant's coworkers agreed with Complainant that there is a culture of discrimination at the Agency is not evidence of pretext as mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). Lastly, Complainant also argued that it was clear that the Selectee was even pre-selected for the position. We note that the Commission has previously determined that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Envt’l Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). Agencies may even pre-select a candidate as long as the pre-selection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). In this matter, even if the Selectee was pre-selected, there is no indication that the decision to do so was based upon a prohibited basis. Without proof of a demonstrably discriminatory motive, we will not second-guess the Agency's personnel decisions. see Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5. 2007); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason [was discriminatory]”). CONCLUSION 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. 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: 2021004258 5 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). 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. 2021004258 6 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 December 21, 2022 Date