U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Calvin D.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120171662 Agency No. ARWSMR15FEB00498 DECISION On April 3, 2017, 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 6, 2017, 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 MODIFIES the Agency's final decision. ISSUES PRESENTED Whether the Agency discriminated against Complainant based on his age, race, and sex when, on January 28, 2015, it did not refer him to the selecting officials for an Interdisciplinary position with the Chief of Staff, Plan and Operations Office, Strategic Planning Office, U.S. Army Test and Evaluation Command; and whether the Agency should be sanctioned for issuing an untimely final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Military Test Plans Analyst at the Agency's Army Test and Evaluation Command facility in Fort Bliss, Texas. On July 18, 2014, Complainant received an email notifying him that he was referred to the selecting official for an Interdisciplinary position with the Chief of Staff, Plans and Operations Office, Strategic Planning Office, in White Sands Missile Range, New Mexico (Vacancy ID#1148547). See Report of Investigation (ROI) at pg. 76. On February 27, 2015, Complainant was notified that the July 2014 vacancy was canceled due to "inadequacy of knowledge, skills and abilities utilized in the occupational assessment." See ROI at pg. 78. The Agency announced a similar vacancy (Vacancy ID#1265006) on December 24, 2014, and Complainant submitted his application. See ROI at pgs. 87-112. On January 28, 2015, Complainant received an email notifying him that he was not referred for further consideration because he did not meet the minimum education and/or experience requirements for this specialty and grade. See ROI at pgs. 113-114. On February 10, 2015, Complainant requested additional information about why he did not meet the minimum education and/or experience requirements. A Supervisory Human Resources Specialist (SHRS) (Hispanic, female, age 55) initially responded that Complainant's resume did not indicate that he had "specialized experience preparing proposals that balance requirements and costs for test and evaluation programs; or experience preparing plans that focus on range suitability and/or enhancement of future testing capabilities or functions." Complainant responded that he did not agree, and offered specific information to show that he had the necessary experience. On March 23, 2015, SHRS emailed Complainant to inform him that he was qualified for the position and should have been referred. However, the position had been filled, and Complainant would be given priority consideration for the next identical position. See ROI at pgs. 138-141. On February 18, 2015, Complainant initiated EEO counseling and elected to participate in mediation. On February 27, 2015, SHRS declined to participate in mediation, explaining that there was a process that applicants can pursue if they believe that a qualifications determination is incorrect. See ROI at pg. 62. On March 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (43) when, on January 28, 2015, it did not refer him to the position with the Chief of Staff, Plan and Operations Office, Strategic Planning Office, U.S. Army Test and Evaluation Command. On September 23, 2015,2 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). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency assumed, for the sake of argument, that Complainant established a prima facie case of discrimination based on age, race, and sex. The Agency then found that the management officials provided legitimate, nondiscriminatory reasons for their actions. SHRS stated that Complainant was not referred because an interpretation of his work did not meet the specialized experience identified in the vacancy announcement. She stated that she consulted with the Branch Chief and a director, and they determined that Complainant was qualified for the position. SHRS stated that she notified Complainant that he would get priority consideration for the next vacancy. The Agency determined that Complainant had not shown pretext for discrimination because mere speculation and/or conjecture that the Agency had a discriminatory motive, without proof, are insufficient for proving pretext. The Agency concluded that Complainant had not shown that the Agency discriminated against him based on his age, race, or sex. Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency submitted its opposition brief on May 17, 2017.3 CONTENTIONS ON APPEAL On appeal, Complainant argues that he has shown pretext for discrimination in the Agency's "delayed response time"; SHRS's refusal to participate in mediation; and the omission of the Rating Summary Reports for the selectees. With respect to a "delayed response time," Complainant raises the timeframe of the EEO investigation, and states that the final decision was issued approximately 527 days after he requested one. Additionally, Complainant notes a 31-day lag time between the time he raised his arguments to SHRS about his non-referral and her response to him acknowledging the error. Complainant states that "(o)n the surface, it looks like there may have been some purposeful delays and possible retaliation against [Complainant] because of [his] EEO complaint." Complainant also argues that SHRS's rejection of the mediation is "unsubstantiated" because she was aware that he was qualified because he was referred to the selecting officials for the July 2014 vacancy. Complainant also alleges that the Agency attempted to tie up "loose ends" when it officially closed the July 2014 vacancy on February 27, 2015. Lastly, Complainant argues that the omission of the selectees' Rating Summery Reports from the Report of Investigation shows bias, and that the selectees were not rated the same as the other candidates. The Agency argues that Complainant has failed to advance any arguments warranting a reversal of the Agency's final decision. The Agency states that Complainant's non-referral was the result of a mistaken analysis of his specialized experience, and there is no evidence to indicate that this mistake was caused by discrimination. The Agency also argues that Complainant's argument regarding any purposeful delays, or retaliation, is not supported by any evidence in the record. The Agency requests that the Commission affirm its final decision. 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"). Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established prima facie cases of discrimination based on age, sex, race, and reprisal,4 we find that the Agency proffered a legitimate, nondiscriminatory reason for its action. SHRS stated that she initially determined that Complainant did not have specialized experience for the position. When Complainant provided his response that he did not agree with that determination, SHRS discussed the issue with others, and they determined that Complainant was qualified. SHRS informed Complainant of the mistake and placed him on a priority consideration list for the next vacancy. SHRS also stated that rating a resume is subjective, and that specialists can interpret work experience differently. We also find that Complainant has not shown evidence that the reason was pretext for discrimination. Complainant can establish pretext in two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. On appeal, Complainant argues that SHRS's rejection of mediation, and a 31-day delay in getting back to him, shows pretext for discrimination. However, we are not convinced that this shows that SHRS is not credible. SHRS stated that she would not participate in mediation for Complainant's EEO complaint because there was another process in place to respond to Complainant's concerns. She even suggested that Complainant be informed that he should request another review from a supervisor. SHRS's decision not to participate in voluntary mediation is not evidence of discrimination. "Agencies have discretion to determine whether a dispute is appropriate for alternative dispute resolution (ADR) such as mediation, and an agency's decision not to engage in ADR may not be the subject of an EEO complaint." Complainant v. U.S. Postal Serv. EEOC Appeal No. 0120122880 (Sept. 19, 2014). Complainant argues that SHRS knew that Complainant was qualified for the position because he was referred to the selecting officials for the July 2014 vacancy. However, SHRS stated that the two vacancies were different because the second vacancy included specialized experience that was not included in the first one. Further, there is no evidence that SHRS was involved in the July 2014 vacancy, or that its closure was an attempt to "cover their mistakes." Additionally, with regard to the 31-day timeframe between Complainant's email and the response, SHRS stated that she met with others to discuss Complainant's situation on March 12, 2015, and responded to him on March 23, 2015. We do not find that this is an undue delay. Complainant argues that the omission of the selectees' rating information demonstrates pretext. However, he has only provided his own assumption that the selectees were treated differently than the other candidates, without any evidence. Moreover, Complainant has not provided any evidence showing that unlawful discrimination more likely motivated SHRS. Accordingly, we find that Complainant's speculation and bare assertions are insufficient to prove pretext for discrimination. In this case, SHRS made a mistake, and placed Complainant on a priority consideration list as a remedy. We find that this mistake, without more, does not establish discriminatory animus. As such, we find that Complainant has not shown by a preponderance of the evidence that the Agency discriminated against him based on his age, sex, race, or in reprisal for filing the instant EEO complaint, when he was not referred to the selecting officials on January 28, 2015. Sanction While we do not agree with Complainant's argument that the untimely final decision shows pretext for discrimination, we find that the Agency has not complied with EEOC regulations. The Commission's regulation found at 29 C.F.R. § 1614.110(b) requires that an agency issue a final decision within 60 days of receiving notification of a request for a final decision. In Complainant's case, the Agency provided the Report of Investigation on September 23, 2015, and Complainant requested a final decision on September 28, 2015. The Agency's final decision was due on November 27, 2015, but was not issued until March 6, 2017, which is 465 days late. In its appeal brief, the Agency acknowledges Complainant's "understandable frustration with ... the length of the EEO investigative process," but it has not provided any explanation why the final decision was issued more than one year late. Accordingly, we find that the Agency's actions warrant a sanction. 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). We find that the Agency failed to comply with the EEOC's regulations in this case, and had not shown good cause for its action, when it issued the untimely final decision. We 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 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 in Fort Belvoir, Virginia;5 and (2) provide training to its EEO personnel who failed to comply with our 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. The Agency's final decision, however, is MODIFIED in accordance with this decision and the ORDER below. ORDER (C0618) Unless otherwise indicated, the Agency is ordered to take the following remedial actions within one hundred and twenty (120) days of its receipt of this decision: I. The Agency shall post a notice in accordance with the paragraph below. II. The Agency shall provide training to the EEO management officials regarding their responsibilities concerning case processing. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation showing that the corrective action has been implemented. POSTING ORDER (G0617) 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (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. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 September 25, 2018 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 On September 17, 2015, the Agency sent Complainant a notice that it would not complete the investigation within 180 days, as required by 29 C.F.R. § 1614.108(e). However, we note that September 23, 2015, is exactly 180 days from the date of the filing of Complainant's formal complaint, March 27, 2015, and the Agency was not late with its investigation. 3 The Agency requested, and was granted, an extension to file its brief until May 25, 2017. 4 Complainant raises retaliation for the first time on appeal. For the sake of discussion, we will include it as a basis because it does not affect the analysis of Complainant's complaint. 5 While the investigation was conducted out of the EEO Office in White Sands Missile Range, New Mexico, the request for a final decision was directed to this EEO Compliance and Complaints Review office. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171662 2 0120171662