Angelo P.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120150056 (E.E.O.C. Jun. 3, 2016)

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

Angelo P.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120150056

Hearing No. 461-2014-00044X

Agency No. HS-FEMA-01686-2013

DECISION

On September 25, 2014, Complainant filed an appeal concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. Our review
is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a former employee of the
Agency and an applicant for a position as a Program Specialist, GS-13, at the Agency’s work
facility in New Orleans.

On August 7, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his age (60) and in reprisal for his prior protected
EEO activity under the ADEA when:

1. Complainant was notified on April 23, 2013, that he was not qualified or selected
for a position as a Program Specialist, GS-0301-13.
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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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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ granted the Agency’s Motion for Summary Judgment
and issued a decision without a hearing on August 11, 2014.

The AJ stated that the Agency’s Human Resources Specialist followed Office of Personnel
Management procedures outlined in the Agency’s USA Staffing User Guide to create the
relevant job announcement. Question one of the job assessment questionnaire was a screen-out
question that required applicants to select from three responses, “A,” “B,” or “C”. Response
“A” referenced specialized experience without specific reference to “Public Assistance” or
identification of “complex issues related to program efficiency and effectiveness”; response
“B” listed the specialized experience required in the job announcement; and response “C”
stated that the applicant did not possess any experience.

The AJ stated that an applicant’s failure to check “B” in response to question one resulted in
the USA Staffing system automatically screening out the applicant as not minimally qualified.
An applicant who responded “A” or “C” was automatically coded as ineligible for the
position. There were fifteen additional questions on the questionnaire that did not screen out
applicants based on their responses, but instead assigned points for each response. Those
applicants who were ineligible based on question one were not assigned a score or rating
category for their responses to the remaining questions.

The AJ observed that the job announcement stated that to qualify for the position the applicant
must possess:

One year of specialized experience. Specialized experience is described as experience
developing and implementing disaster recovery Public Assistance policies and
procedures, providing guidance to inter and intra-agency contacts on policy and
procedural interpretation, recommending modifications to national policies, and
procedures based on broad program studies and identifying complex issues related to
program efficiency and effectiveness in order to recommend resolution and
improvement.

The AJ noted that pursuant to the USA Staffing Guide, the Human Resources Specialist
reviewed the list of applicants from the USA Staffing system’s application screen to ensure
there were no applicants in a pending status. The AJ stated that the application screen
mentioned the applicant’s name, redacted social security number, status, application date,
source of application and announcement number. The AJ pointed out that the application
screen did not list the applicant’s age, prior employment, EEO activity, how the job
questionnaire was answered or resume content.

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The AJ stated that 110 individuals, including Complainant, applied for the position.
Complainant and 73 other applicants failed to check “B” in response to question one.
Complainant checked response “A”. Complainant was among 74 applicants who were
screened out by the USA Staffing system and not included on the preliminary ranking list. The
AJ stated that the Human Resources Specialist did not see any of the application packages
submitted by the applicants who were screened out. The Human Resources Specialist stated
that she reviewed the application packages of the 36 applicants on the preliminary ranking list
and determined that 26 of the applicants did not meet the minimum qualifications. Seven of
the remaining applicants appeared on a certificate of eligible candidates based on a cutoff score
of 95.

With respect to Complainant’s claim of age discrimination, the AJ found insufficient evidence
existed to establish a prima facie case of age discrimination or to refute the Agency’s legitimate
rationale for the screen-out action taken on Complainant’s application. The AJ reasoned that
the Agency treated Complainant like all similarly situated applicants, i.e., those who chose a
response other than “B” on the screen-out question were classified as not minimally qualified
and were not included on the preliminary ranking list for qualified applicants.

As for Complainant’s claim of reprisal, the AJ found that Complainant did not set forth a
prima facie case and he could not refute the Agency’s legitimate rationale for its action. The
AJ stated that the record is void of any probative evidence of a causal nexus between
Complainant’s EEO activity and the screening-out of Complainant’s application. The AJ
rejected what she termed Complainant’s speculative arguments and unsupported conspiracy
theory.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final order pursuant to 29 C.F.R.
§ 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was the most highly qualified candidate for the
position. Complainant states that he exceeded the education and experience requirements for
the Program Specialist position. According to Complainant, he has seventeen years of
experience at the equivalent of the GS-14 level as a Program Specialist for all Agency
programs and nearly three years of experience at the GS-15 level as an Agency Program
Specialist. Complainant states that the selectee’s only prior government experience as a
Program Specialist was three months at the GS-13 level. Complainant argues that the selectee
did not meet the minimum requirement of one year of specialized experience.

Complainant maintains that the Human Resources Specialist programmed the computer to
reject the older and most experienced applicants. Complainant argues that the Agency’s policy
indicated that his resume would be reviewed to see if he was qualified. Complainant notes that

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the Human Resources Specialist acknowledged that she did not read his resume and did not
know about his education and experience. Complainant states that he answered “A” to the
relevant question which he states reflected the most experience. According to Complainant,
question one was not designed to be a screening question for education and experience and that
instead the job announcement stated the assessment questionnaire was to be a measure of
knowledge, skills and abilities. Complainant asserts that the primary duty of the position at
issue is handling appeals, that he has a Juris Doctor degree, and the selectee has no formal
legal education.

Complainant contends that the selectee was preselected. In support of this argument,
Complainant states that the job announcement was open for only three business days rather
than the customary two weeks. Complainant notes that the selectee was working in the
selecting official’s branch and the Agency refused to answer his interrogatory concerning the
nature of their relationship. Complainant states that a certificate of eligibles is normally valid
for two months but in this instance, it was valid for only seven days.

Complainant maintains that a nexus exists between his prior EEO activity and the rejection of
his application. According to Complainant, an EEOC AJ in one of his prior complaints upheld
the Agency’s practice of withholding his application and then rejecting it with the false pretext
of him not being qualified seven days before the Agency resumed the use of this approach in
the instant matter. Complainant claims that a conspiracy exists to blacklist him from regaining
employment with the Agency.

In response, the Agency asserts that all 74 applicants, including Complainant, who selected
“A” or “C” in response to question one were screened out with no further review. The
Agency states that Complainant’s appeal is replete with arguments raised and decided in his
prior EEO complaint, and that he in effect is lodging a collateral attack on another proceeding.
The Agency rejects Complainant’s conspiracy theory, noting that none of the management
officials in his prior EEO complaint played a role in the nonselection at issue.

With regard to Complainant’s claim of age discrimination, the Agency asserts that
Complainant cannot demonstrate that the Human Resources Specialist was aware of his age and
he cannot establish that a similarly situated younger applicant was selected for the position.
The Agency points out that the application screen does not list the applicant’s age, prior
employment, prior EEO activity, how an applicant answered the job questionnaire, or divulge
the contents of the applicant’s resume. The Agency argues that the selectee was not similarly
situated to Complainant because she selected “B” in response to question one and was not
automatically screened out. The Agency states that the selectee and the 35 other applicants on
the preliminary ranking list self-identified themselves as possessing the specific experience
required for the position.

With respect to Complainant’s claim of reprisal, the Agency asserts that Complainant cannot
demonstrate that the Human Resources Specialist was aware of his prior EEO activity or that a
nexus exists between the protected activity and his nonselection. The Agency states that

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Complainant relies entirely upon his unsupported conclusion that the Human Resources
Specialist must have known about his protected activity because he allegedly faxed an OF-306
listing his protected activity to an unidentified person at the Agency at an unidentified number
for another unidentified job.

The Agency asserts that Complainant’s contention of an Agency-wide conspiracy is not
reasonable and is not supported by any credible evidence. The Agency states that
Complainant’s only evidence was his unsupported contentions against an Agency official in his
earlier EEO complaint. The Agency states that the Commission determined that such claims
against that Agency official in the prior matter were without merit. The Agency maintains that
the disposition of Complainant’s application ultimately was based on Complainant’s failure in
completing the job assessment questionnaire to identify that he possessed the specific
experience required for the position.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Disparate Treatment/Reprisal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. We find that the Agency has articulated the reasons why
Complainant was not selected. The Agency explained that Complainant was not chosen for the
Program Specialist position because he was screened out due to the response he gave to
question one on the job assessment questionnaire. Applicants, including Complainant, who did
not provide the correct response were deemed not minimally qualified and were not referred

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for further consideration on the preliminary ranking list. We find that the Agency articulated a
legitimate, nondiscriminatory reason for Complainant’s nonselection.

Complainant attempts to establish pretext by arguing that his credentials, in terms of education
and experience, rendered him the most qualified candidate for the position. Complainant
points to seventeen years of experience at the equivalent of the GS-14 level as a Program
Specialist for all Agency programs and nearly three years of experience at the GS-15 level as
an Agency Program Specialist. Complainant states that he has a Juris Doctor degree.
Complainant also believes that Agency officials are engaged in a conspiracy to keep him from
regaining employment with the Agency. Complainant suggests that the Human Resources
Specialist programmed the computer to reject the older and most experienced applicants.
Complainant argues that the Agency’s policy indicated that his resume would be reviewed to
see if he was qualified. Complainant also contends that the selectee was preselected.

We recognize that Complainant has many years of experience as a Program Specialist.
However, we discern no evidence that supports Complainant’s claims of age discrimination
and reprisal. All of the applicants regardless of age who answered a response other than “B”
to question one were automatically screened out as not minimally qualified. Therefore,
Complainant was not singled out based on his age. With regard to his claim of reprisal, we are
not persuaded by any of Complainant’s arguments that Agency officials manipulated the job
assessment questionnaire to ensure that he would not be selected, that the selectee was
preselected, or that officials otherwise conspired to prevent him from regaining employment
with the Agency. We find that Complainant failed to establish by a preponderance of the
evidence that the Agency’s explanation for his nonselection was pretext intended to hide
discriminatory intent.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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:

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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. 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 (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

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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

June 3, 2016
Date