Ambrose M.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120142986 (E.E.O.C. Jan. 29, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ambrose M.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120142986

Hearing No. 540-2013-00383X

Agency No. 13-09-030

DECISION

On August 21, 2014, Complainant filed an appeal from the Agency’s July 23, 2014 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. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant previously worked for the Bureau of Labor Statistics (BLS) as a GS-7 Economist,
but was terminated near the end of his probationary period on June 28, 2000. Investigative
Report (IR) 326, 331. Twelve years later, he applied at BLS for the position of Economist,
GS-9. While his name appeared on a certification list of best-qualified candidates, he was
notified by email on July 30, 2012, he was not selected for the position. IR 125, 127. On
September 6, 2012, Complainant filed an EEO complaint in which he alleged that his previous
second-level supervisor (S2) had discriminated against him on the bases of race (African-
American), national origin (Ethiopian), color (Black), age (62), and reprisal (prior EEO

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.
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activity) by providing information to various unnamed selecting officials that resulted in his not
receiving an interview. IR 104, 111, 113.

The vacancy announcement in question covered multiple vacancies across various divisions
within the BLS. The certification list included the names of 55 candidates, including
Complainant. Numerous Supervisory and Senior Economists either reviewed the candidates’
application packages, conducted interviews, or made selections. Most did not remember
Complainant’s application, but those that did averred that his resume was not as strong as those
of the selectees. IR 124-25, 127, 193-94, 209-10, 226-27, 296-98, 332-37, 355,

S2 averred that he provided no information to any selecting official or otherwise played any
role in the selection process. IR 167. The Senior and Supervisory Economists involved in the
selection process confirmed that S2 was not involved in and did not exercise any influence over
the selection process, although one Senior Economist averred that she was informed by S2 of
the circumstances under which Complainant had been previously terminated. IR 176, 184-85,
195, 203, 211, 220-21, 228-29, 234, 241, 252, 264, 273, 281, 289, 299, 304-05, 312, 323.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant requested a hearing but on April 8, 2014, the Agency filed a motion for sanctions
for failure to prosecute when Complainant did not respond to any discovery requests or
communicate with Agency counsel. In response to the Agency’s motion, the AJ assigned to
hear the case issued an order directing Complainant to show cause as to why his case should
not be dismissed based on his failure to cooperate with the processing of his complaint. The
order directed Complainant to respond by no later than April 1, 2014. On May 14, 2014, after
not receiving a response from Complainant, the AJ entered an order dismissing his hearing
request and remanded the complaint to the Agency for issuance of a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s hiring decisions unless there is evidence of
a discriminatory motivation on the part of the officials responsible for those decisions. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore,
in order to prevail on his disparate treatment claim in connection with the Agency’s decision
not to hire him, Complainant would have to prove, by a preponderance of the evidence, that S2
and the individuals who made the decision not to hire him were motivated by unlawful
considerations of his race, color, national origin, age, or previous EEO activity. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by presenting documents or sworn testimony showing that the reasons
articulated by those officials for not hiring him are pretextual, i.e., not the real reason but
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rather a cover for discrimination on the aforementioned bases. St. Mary’s Honor Society v.
Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. The Commission has long
held that in cases involving a failure to hire, an employer has discretion to choose among
equally qualified candidates as long as the selection is not based on unlawful criteria.
Complainant v. Department of Homeland Security, EEOC Appeal No. 0120141478 (July 31,
2015). Within this context, proof of pretext can take the form of a showing that Complainant’s
qualifications for the position were plainly superior to those of the selectee. Hung P. v.
Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3, 2015). It can
also take the form of discriminatory statements or past personal treatment attributable to one or
more of the responding management officials, comparative or statistical data showing
differences in treatment across racial, color, national origin or age-related 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. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that his race, color, national origin, age, or
previous EEO complaints were factors in his not being hired as a GS-7 Economist,
Complainant responded that there were many studies done that documented pervasive and well-
organized efforts to discriminate against people like him. IR 117-18. In support of his
contention, he attached a number of articles from various sources purporting to document
instances of employment discrimination against Black men in the Federal Government. IR
130-163. However, neither his affidavit testimony nor any of the articles establish any
connection between these instances of alleged discrimination and the motivations of S2 and the
Economists involved in the selection process. He has not submitted any sworn statements from
other witnesses or documents that contradict the affidavits of S2 and the Economists attesting
that S2 played no role in the selection process, and that the selectees’ qualifications for the
positions were stronger than his. Likewise, he has not provided any evidence that calls the
veracity of any of these officials into question. We therefore agree with the Agency that
Complainant failed to establish the existence of an unlawful motive on the part of S2 or anyone
who played a role in the selection process for the GS-7 Economist positions in the Spring and
Summer of 2012.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:

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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, P.O. Box 77960, Washington, DC 20013. 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 (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.

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
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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

January 29, 2016
Date