Brant C.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Jul 15, 2016

0120142548 (E.E.O.C. Jul. 15, 2016)

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

Brant C.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120142548

Hearing No. 541-2013-00184X

Agency Nos. BLM-11-0148; BLM-12-0576

DECISION

The Commission accepts Complainant’s appeal from the Agency’s June 3, 2014 final order
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’s review is de novo. For the following
reason, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s Tres Rios Field Office in Dolores, Colorado. Complainant
applied for an Archeologist position (Position 1) advertised under Public Vacancy
Announcement No. CO-DEU-2011-0101 and Merit Promotion Announcement No. CO-Merit-
2011-0216. The Agency utilized a hiring management software program to group each of the
applicants from the public announcement into one of three categories: “Best Qualified;”
“Highly Qualified;” and “Qualified.” Applicants from the merit announcement were given
numerical scores and those achieving a “90” or higher were considered “Best Qualified.”

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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Applicants for Position 1 that were ranked among the Best Qualified from both announcements
were included on the Certificate of Eligibles and forwarded to the selecting official (SO1) for
further consideration. Complainant was ranked as Highly Qualified by the hiring management
software and was not included on the Certificate of Eligibles. One applicant on the Certificate
of Eligibles qualified for a veteran’s preference in hiring and was offered the position. The
qualified veteran ultimately declined the position, and Selectee 1 was chosen from the
Certificate of Eligibles.

On February 27, 2012, Complainant filed a formal complaint (BLM-11-0148) alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex (male), and in reprisal
for prior protected EEO activity when:

1. On December 22, 2011, he learned through a Freedom of Information Act (FOIA)
request, that the selectee for the Archeologist position was not a Veteran, although
on September 11, 2011, he received notification that he was not referred to the
selecting official due to a sufficient number of qualified veteran candidates who
would be referred.

Complainant applied for a Temporary Archeologist position advertised under Public Vacancy
Announcement No. CO-DEU-2012-00038 (Position 2.). This position was a term position not
to exceed three months. The Agency’s hiring management software grouped all of the
applicants into three categories: Best Qualified, Highly Qualified, and Qualified, without
assigning a numerical score. The Best Qualified applicants were included in the Certificate of
Eligibles for further consideration.

Complainant was ranked among the Best Qualified and his name was referred for
consideration. A preference-eligible veteran was offered the position; however, he declined
the position, and the remaining applicants, including Complainant, were sent updated notices
indicating that they were referred for further consideration. The selecting official (SO2)
ultimately decided to select Selectee 2 from the Certificate of Eligibles after reviewing her
application materials.

On November 8, 2012, Complainant filed a second formal complaint (BLM-12-0576) alleging
that the Agency discriminated against him on the bases of race (Caucasian), sex (male), age
(54), and in reprisal for prior protected EEO activity when:

2. On August 2, 2012, he received a FOIA that led him to believe that he was not
selected for the Archeologist position, advertised under Vacancy Announcement
No. CO-DEU-2012-0038 due to discrimination.

At the conclusion of the investigation, the Agency provided Complainant with copies of the
reports of investigation (ROI-1 and ROI-2 respectively) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. The AJ assigned to the case consolidated the cases on
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August 6, 2013. The AJ granted summary judgment in favor of the Agency and issued a
decision on April 29, 2014.

In her decision, the AJ initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal as to both claims and determined that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions. With respect to Position 1,
Complainant was not ranked by the hiring management software among 40 applicants ranked
Best Qualified. Complainant ranked in the mid-tier group of 24 applicants in the Highly
Qualified group. As to Position 2, SO deemed Selectee 2 to be more qualified because she had
already worked on both projects that he had funding for the position and was interested in
continuing that work. Complainant had more overall experience; however, Selectee 2 had
more experience in the specific project and location at issue. As a result, SO chose Selectee 2.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency based on his opinion that the AJ did not fully review his arguments. Complainant
alleges that Agency management pre-selected two female candidates and never had any
incentive to hire anyone else. In addition, Complainant claims that the Agency’s ranking
process was flawed. Further, Complainant contends that he was more qualified than the two
selectees and that he believes that there are questions about the nature of the personal
relationships between the selectees and the selecting officials. Accordingly, Complainant
requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

Disparate Treatment

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 she 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.
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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. Assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. More
specifically, with respect to Position 1, Complainant was not referred to the selecting official
for further consideration because he did not score high enough to be placed on the Best
Qualified list based on his responses to the job-specific questionnaire. ROI-1, at 102.
Complainant’s score was within the Highly Qualified range. Id. Because there were a
significant number of Best Qualified applicants, Complainant’s application was not referred for
further consideration. Id. at 103.

Regarding Position 2, Complainant was referred for further consideration as a Best Qualified
applicant. ROI-2, at 180. SO2 initially offered the position to a candidate with veteran’s
preference; however, he declined it. Id. at 156. SO2 stated that he then selected Selectee 2
after reviewing her qualifications and her application. Id. at 157. SO2 noted that he was
familiar with Selectee 2’s professional background and that she had direct prior work
experience with the projects associated with the position. Id. For example, SO2 stated that
Selectee 2 worked on a project relevant to the position during her course work that was
commended by the review committee of the National Register of Historic Places and the State
Archeologist. Id. at 157-58. SO2 added that he already spent three months trying to fill the
position so he tried to simplify the process as much as he could and determined that Selectee 2
was the most qualified because she was the only person that had worked on the projects
associated with the position. Id. at 157. As a result, SO2 determined that Selectee 2 was the
most qualified applicant for the position based on her professional background. Id. at 159.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext is by showing that his qualifications are observably superior to those of the selectee.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not
the only way Complainant may establish pretext as to his non-selection claim.

The Commission finds that Complainant failed to show that his qualifications for the positions
at issue were plainly superior to those of the selectees. In this case, Selectee 1 and Selectee 2
had attributes that justified their selection, and the selection officials affirmed that they
believed both were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. While
Complainant believes that he was more qualified based on his overall experience, the
Commission notes that number of years of experience, alone, is insufficient to establish that a
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candidate’s qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC
Appeal No. 0120112758 (Oct. 13, 2011). Furthermore, even if preselection occurred as
Complainant alleged on appeal, Complainant has not shown that any such preselection was
motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir.
1986).

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record lacks evidence that the Agency’s selections or the selection process was tainted by
discriminatory or retaliatory animus. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that discriminatory or retaliatory animus was a factor in its
actions. Complainant failed to carry this burden. As a result, the Commission finds that
Complainant has not established that he was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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
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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
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

July 15, 2016
Date