Cliff C.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

May 9, 2018

0120162579 (E.E.O.C. May. 9, 2018)

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

Cliff C.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120162579

Agency No. 55-2015-00277

DECISION

On August 8, 2016, 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
July 26, 2016, 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
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an International Trade
Compliance Analyst, GS-1801-13 at the Agency’s Office IV, Enforcement and Compliance (E&C)
facility in Washington, DC. In July 2015, the Agency announced multiple vacancies for full-time
Senior International Trade Compliance Analysts, GS-1801-14, in the E&C Unit. Among the
vacancies announced was one Senior International Compliance Analyst position in Office IV of
E&C, where Complainant worked. Complainant applied for several of the announced positions,
including the one in Office IV.

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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The GS-14 Program Manager in Office IV and the GS-14 Supervisory International Trade
Compliance (SITC) Analyst, served as members of first and second-round interview panels
convened to evaluate the candidates. A Program Manager in Office V of E&C also participated in
the first round of interviews. The Director of Office IV participated in second-round interviews
for candidates to the Office IV vacancy.

Complainant was one of 18 candidates interviewed in the first round. However, although he was
found qualified, he was not one of the four candidates selected for the second-round of interviews.
Ultimately, he was not selected for any of the positions to which he had applied.

With respect to Office IV, the Program Manager and the SITC Analyst from the first-round
interview panel decided who would move on to the second round. They selected four candidates
and the Director joined them in conducting the second round of interviews. Following those
interviews, the Program Manager and the SITC Analyst discussed the candidates and
recommended to the Office IV Director to hire Selectee (National Origin: Hispanic; Age:45) for
the Office IV vacancy. The Director supported the recommendation of Selectee for that position
and hired him.

On December 17, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Egyptian) and age (55) when he was not
selected for the position of Senior International Trade Compliance Analyst in Office IV, as
advertised under Vacancy Announcement Number ITA-E&C-2015-0024. Specifically, he accused
the Office IV Director of discriminatory animus based on national origin and age. Complainant
asserts that the Director was reluctant to promote him due to fear that he may seem biased in favor
of individuals with similar ethnic backgrounds. He added that the Director has been defensive
about being from the Middle East, projects an "anti-Middle Eastern bias" onto him, and feels he
can discriminate against Complainant without appearing to do so because of their similar ethnic
origin. Complainant also said that his age was a factor in the nonselection because the Director is
much younger than he is and that in the Middle East it is uncommon for someone to be supervised
by someone younger than them. He believed that the Director therefore was “uncomfortable and
defensive" about being his supervisor.

Complainant claimed that the Program Manager and the SITC Analyst were aware of the
Director’s “animosity” towards him. However, he did not allege that they or any other member of
the first-round interview panel discriminated against him. He also did not allege that his
nonselection for the vacancies in other offices was the result of unlawful discrimination.

After 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). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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The Agency found that Complainant had established a prima facie case of age and national origin
discrimination. It noted that Complainant had applied for the position, was qualified, was not
selected, and the Selectee was significantly younger and Hispanic. However, it found that
Complainant did not prove that the Agency’s reason for not selecting him was a pretext for
unlawful discrimination. Moreover, the Agency found Complainant did not assert that the two
first-round interviewers shared his Director’s alleged national origin and age-based animus toward
him.

In deciding that the reasons for Complainant’s nonselection were legitimate and
nondiscriminatory, the Agency reviewed the interview panel’s evaluation of the candidates.
Specifically, the Agency noted that the Program Manager stated that, although Complainant
possessed the skills necessary to be ranked in the top grouping of candidates, the four candidates
that he and the SITC Analyst selected had a more positive attitude. He cited, as an example, that
all four candidates indicated that if faced with a conflict, they would handle it in a non-
confrontational and respectful manner. Complainant, in contrast, committed to resolving the
conflict, but made no reference to a respectful and non-confrontational approach. The Program
Manager noted that when he was Complainant’s supervisor, he found that Complainant "can
sometimes be a little confrontational" with his supervisors and colleagues. Further, he observed
that Office IV position entailed acting as the program manager's lieutenant to a certain degree, and
he believed Complainant would instead act like the program manager and may be "a little
confrontational" in such situations, harming office morale. Finally, he stated that having worked
with Selectee, he believed Selectee had a better working relationship with his colleagues than
Complainant and possessed a willingness to help fellow analysts whenever needed without
complaint, a quality he felt Complainant did not similarly possess. He added neither
Complainant’s age nor national origin was a factor in his nonselection.

The SITC Analyst stated that in his experience GS-14 Analysts are assigned to lead more complex
and high profile cases, take on heavier caseloads, and assist other analysts. He said that he was
looking for a candidate who was technically proficient and knowledgeable regarding anti-dumping
and countervailing duty methodologies, was efficient, a good writer, easy to work with, and able
to handle heavy workloads under stress. He indicated that he evaluated candidates based on their
interview performance, experience, and his own knowledge of their work performance. Having
worked closely with Complainant as his immediate supervisor for several years, the SITC Analyst
said that he found him to lack "sharp focus" and that his analysis was not "incisive" at times. He
said that despite Complainant's potential to provide good analysis and accurate calculations, he
believed the characteristics he observed in Complainant's prior performance posed a risk of future
errors and problems. He opined that Selectee, by comparison, was focused, productive, efficient,
quick to understand issues, and someone who went about his work without objection regardless of
workload.

Finally, the Director asserted that he did not discriminate against Complainant based on age or
national origin in this nonselection. He maintained that he was not involved in the determination
that resulted in Complainant not being selected for the second-round interview. Rather, he stated
that he only supported the recommendation that Selectee be hired.
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Based on these reasons, the Agency decided that regardless of how the interview panel reached its
conclusions regarding which candidates to refer, Complainant offered no meaningful rebuttal to
management's testimony that they sought a candidate who was best equipped to address
interpersonal disputes. The Agency therefore concluded that the reasons offered by Agency
management were the true reasons for its selection decision and that management was not
motivated by unlawful discrimination.

ANALYSIS AND FINDINGS

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”). Both
Complainant and the Agency filed appellate briefs.

On appeal, Complainant reiterates his arguments challenging the interview panel’s assessment of
his ability to resolve conflict without confrontation or their view that the Selectee has a better
working relationship with his colleagues. He states that if “I disagree with a supervisor, I see it as
my job to state my reasons in a forthright manner.” He argues that because there is evidence that
his performance and interactions were lauded in his performance evaluations, the only reason he
was excluded from the position at issue was because of the Director’s antipathy towards him
because of his age and national origin.

The Agency maintains that Complainant failed to establish that the Agency’s legitimate,
nondiscriminatory reasons for making its selection at issue was pretext for discrimination based
upon Complainant’s national origin or age. It requests that its decision be affirmed.

On review of the record, the Commission finds no error in the Agency’s decision. Complainant’s
discontent with the interview panel’s assessment and speculation that the Director possessed
discriminatory animus towards him is insufficient to establish discrimination. The first-round
interview panel decided to exclude Complainant from the second round and, although Complainant
challenges their reasons, he does not allege that either the Program Manager or the SITC Analyst
harbored any discriminatory animus towards him. Furthermore, the record is clear that the
Director whom Complainant accuses of unlawful bias was not involved in and exerted no influence
on the decision to exclude Complainant from the second round. Accordingly, the Commission
finds that Complainant has not established by a preponderance of the evidence that he was a victim
of discrimination.

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CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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 (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.
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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

May 9, 2018
Date