EEOC Appeal No. 0120140418
04-10-2017
Truman B. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Truman B.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120140418
Hearing No. 570-2011-00668X
Agency No. ARMYER10OCT04858
DECISION
On November 6, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 1, 2013, final decision (FAD) 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 MODIFIES the Agency's FAD.
ISSUES PRESENTED
Whether Complainant established that he was discriminated against in retaliation for engaging in protected EEO activity; and whether Complainant established that the Agency should be sanctioned for failing to conduct its investigation within the regulatory timeframes, and to issue its final decision (FAD) in this case within the timeframe specified by the Equal Employment Opportunity Commission Administrative Judge (AJ).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory General Engineer at Fort Bliss in El Paso, Texas. On July 20, 2010, the Agency issued Vacancy Announcement NCFP10388471 for a Supervisory General Engineer (GS-801-13) at the Joint Base Myer-Henderson Hall, Directorate of Public Works, Operations and Maintenance Division in Fort Myer, Virginia. Complainant applied for the vacancy and was referred to the selecting official (SO) (male, 34 years old, no prior EEO activity).
In addition to Complainant, three other applicants were referred to the SO, who determined that two of the four applicants did not have the right qualifications because they lacked experience in facilities management. The SO emailed Complainant and the other qualified applicant a questionnaire, requesting a written response. The SO did not conduct interviews. Based on their written responses and resumes, the SO determined that Complainant was the better applicant.
On August 30, 2010, the SO sent Complainant an email informing him that he had been "unofficially" selected to be offered the position. The SO discussed the selection with his supervisor (S1), who expressed concern about the small applicant pool and cautioned the SO that he needed to be comfortable with his selection. The SO contacted the Civilian Personnel Advisory Center (CPAC) to request a hold on the vacancy selection. The SO reviewed Complainant's resume again and decided to reach out to his known contacts who worked in one of Complainant's former offices. The SO spoke with one of Complainant's former employees (FE) (male, 64 years old, no prior EEO activity) in September 2010. The FE informed the SO that he would not recommend selecting Complainant for the position because he did not think that Complainant was a good leader. Specifically, the FE stated that Complainant took credit for others' work; was frequently absent; was unavailable to act in his supervisory capacity; and that the FE left the organization because of Complainant. The FE stated that he did not discuss Complainant's sex, age or prior EEO activity with the SO.
The SO decided to re-advertise the position, which was open from September 9, 2010, through September 15, 2010. On September 17, 2010, CPAC notified the SO that a well-qualified Priority Placement Program (PPP) candidate was identified for the position,2 who was then selected (Selectee) (male, 65, unknown EEO activity).
On November 16, 2010, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (55), and in reprisal for prior EEO activity (filing of appeal before the MSPB with affirmative defenses of discrimination, and filing a civil action against the Agency) when he was not selected for the Supervisory General Engineer position, after he was told that he was unofficially selected for the position; and when the Agency did not inform him that the position was re-advertised.3
The Agency accepted Complainant's complaint for investigation on December 3, 2010. On May 17, 2011, Complainant requested a hearing before an EEOC Administrative Judge when he did not receive his report of investigation after 180 days. On May 19, 2011, Complainant notified the Agency that since the jurisdiction of his case was now with the EEOC, he would not participate in the Agency's investigation. The Agency conducted the fact-finding conference, without Complainant, on June 13, 2011.4
On August 10, 2011, Complainant filed a Motion for Default Judgment for the Agency's failure to conduct an investigation within 180 days of filing his formal complaint. Complainant argued that the Agency had not even initiated the investigation by the 180th day and had not provided good cause. The AJ denied the motion. On February 22, 2013, the AJ denied the Agency's Motion for Summary Judgment and determined that a hearing was necessary. On May 14, 2013, Complainant withdrew his request for a hearing. Accordingly, the AJ issued an Order on May 15, 2013, dismissing the hearing and ordering the Agency to issue its FAD within 60 days of the order.
On November 1, 2013, the Agency issued the FAD finding that Complainant had not shown that the Agency discriminated against him as alleged. The Agency assumed, without finding, that Complainant had established a prima facie case of discrimination based on sex, age, and in reprisal for prior EEO activity, and then found that the SO articulated legitimate, non-discriminatory reasons for his actions, i.e., after the SO told Complainant that he was "unofficially" selected for the position, he informed S1 that he had made a decision for the vacancy. S1 posed questions and impressed upon the SO that he needed to be 100% satisfied with his decision. After giving it some thought, the SO decided that he was not sure if he had selected the best candidate because he only had a pool of four applicants. The SO instructed CPAC to put a hold on the selection, and contacted the FE, who did not recommend that the SO select Complainant.
The SO decided to re-announce the vacancy, in hopes of obtaining a larger applicant pool. Before a list of qualified applicants could be generated for the second vacancy, the SO was informed about Selectee, who was a PPP match. The SO reviewed Selectee's resume and decided that he would be a good choice for the position.
In regards to Complainant's claim that he was discriminated against when the SO did not inform him that the position had been announced again, the Agency found that, because the selection process ended when the Selectee was chosen, pursuant to the PPP, Complainant was not harmed, because even if he had been informed about the re-announcement and submitted his application, he would not have been selected.
The Agency found that Complainant's disagreement over management's business decision does not constitute evidence that it was motivated by discriminatory animus; and that Complainant had not provided any evidence showing that the SO's legitimate, nondiscriminatory reasons were pretext for discrimination. Accordingly, the Agency held that Complainant had not shown that the Agency discriminated against him based on sex, age, or in reprisal for prior EEO activity.
On October 17, 2013, Complainant filed a Motion for Default Judgment with the Commission for the Agency's failure to issue a timely FAD within 60 days of the AJ's order. Complainant also alleged that the AJ erred in denying his Motion for Sanctions for the Agency's failure to conduct a timely investigation. The Agency issued the FAD on November 1, 2013, and Complainant filed the instant appeal from the FAD on November 6, 2013. Complainant submitted his Brief in Support of Appeal on December 6, 2013. The Agency filed a Statement in Opposition to Appeal on February 18, 2014, requesting that the Commission affirm the findings in the FAD. On February 25, 2014, Complainant filed a Motion to Strike Agency's Statement in Opposition to Appeal claiming that the Agency's statement should not be considered because it is untimely.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency retaliated against him for his prior EEO activity when he was not selected for the Supervisory General Engineer position; and when he was not notified that the position was re-announced. Complainant argues that the Agency has not articulated a legitimate, nondiscriminatory reason for its action with sufficient specificity. Complainant also requests a default judgment as a sanction against the Agency.
In its reply, the Agency reiterates its explanation for Complainant's nonselection. Contending that Complainant did not establish that this explanation is pretextual, the Agency urges the Commission to affirm the FAD.
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 (EEO MD-110), 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
The Commission has the discretion to review only those issues specifically raised in an appeal. We note that, on appeal, Complainant argued only that Agency erred when it found that he was not discriminated against based on reprisal for his EEO activity. As such, we will not address his contentions that the Agency discriminated against him based on sex and age.
Disparate Treatment Claim
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, we find that the record does not support a determination that the SO was aware of Complainant's prior EEO activity. While Complainant alleges that management officials from his prior EEO complaint informed the SO of his EEO activity, he did not name these management officials, and there is no evidence to support this assertion. The SO stated that he did not know of Complainant's prior EEO activity; and the FE stated that he did not discuss Complainant's prior EEO activity with the SO during their conversation. As such, we find that Complainant has not established a prima facie case of discrimination based on reprisal for prior EEO activity. Therefore, he has not established that he was discriminated against here because of his prior EEO activity as he alleged.
Violation of EEOC's Part 1614 Regulation
In Complainant's Motion for a Default Judgment, he requests sanctions in the form of a default judgment against the Agency for failure to issue a timely FAD, in accordance with the AJ's May 15, 2013 Order. As noted above, the Agency was ordered to issue the FAD within 60 days, but it did not issue the FAD until November 1, 2013, which was 170 days after the May 15, 2013 Order. The Agency did not provide a reason for the late issuance of the FAD. Therefore, the Commission finds that the Agency did not comply with its obligation to issue a final decision in accordance with the time frames set forth at 29 C.F.R. � 1614.110(b),5 and the timeframe specified by the AJ. As noted by the Commission in Mach v. Dep't of Defense, EEOC Appeal No. 0120080658 (Nov. 30, 2010), "the procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment." Accordingly, we find that a sanction in this case is appropriate.
Sanctions
Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In the case at hand, we find that the Agency has repeatedly failed to comply with EEOC's regulations in this case, and had not shown good cause for its actions, when it did not complete Complainant's investigation within 180 days, and when it issued the untimely FAD. We also note that, regarding the fourth factor, the effect on the integrity of the EEO process should not be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009). "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." Id. The Commission must ensure that all parties abide by its regulations and orders.
Based on the specific facts of this case, we find that the most appropriate sanction to address the Agency's conduct is to order the Agency to: (1) post a notice at its Equal Employment Opportunity Compliance and Complaints Review office, located in Fort Belvoir, Virginia regarding its failure to comply with our regulatory timeframes and the AJ's Order; (2) provide training to its EEO personnel who failed to comply with our regulatory timeframes and the AJ's Order; (3) consider taking disciplinary action against these EEO personnel; and (4) pay Complainant's attorney's fees for filing the appeal in this case. Our decision to sanction the Agency in this matter will effectively emphasize to the Agency the need to comply with Commission orders in a timely manner, as well as ensure that future Agency investigations are adequately developed for adjudication in accordance with regulatory timeframes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination based on reprisal. The Agency's final decision, however, is MODIFIED in accordance with this decision and the ORDER below.
ORDER
Unless otherwise indicated, the Agency is ordered to complete the following remedial actions within one hundred and twenty (120) days of its receipt of this decision:
1. The Agency shall post a notice in accordance with the paragraph below.
2. The Agency shall provide training to the EEO management officials regarding their responsibilities concerning case processing.
3. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation-of their departure date(s).
4. As a sanction, the Agency shall provide Complainant attorney's fees for filing this appeal in accordance with the procedures set forth below in Paragraph H.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Equal Employment Opportunity Compliance and Complaints Review Office, located in Fort Belvoir, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
_4/10/17_________________
Date
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 The PPP is a Department of Defense (DoD) program that matches well-qualified employees who are subject to displacement with vacant DoD positions.
3 The record does not contain details regarding Complainant's prior EEO activity.
4 The record does not contain any sworn statement from Complainant.
5 EEOC's regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency, or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. � 1614.110(b).
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