Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 11, 2015

0120132689 (E.E.O.C. Mar. 11, 2015)

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

,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120132689

Hearing No. 570-2012-00822X

Agency No. DOS-F-116-11

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated June 7, 2013,
finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision
finding of no discrimination.

BACKGROUND
In his complaint, dated August 23, 2011, Complainant, an applicant for employment at the
Agency, alleged discrimination based on race (African-American), age (over 40), and sex
(male) when on May 3, 2011, he was not selected for a PSC (Personal Services Contractor)-
Program Analyst, GS-0080-13/13, position under vacancy announcement number DS-2011-
0230. After completion of the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). However, on April 29, 2013, the AJ denied
Complainant’s hearing request and ordered the Agency to issue its final Agency decision.
Specifically, the AJ stated that Complainant failed to appear for his deposition which was
scheduled on March 15, 2013, without any justification. The Agency then issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.

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ANALYSIS AND FINDINGS
Initially, Complainant contends that the AJ improperly denied his hearing request. We
disagree. The record indicates that on January 28, 2013, the AJ issued an order compelling
Complainant to select a date and to appear for a deposition and informed him that his failure to
do so might result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). Pursuant to the order,
the parties agreed and scheduled Complainant’s deposition to be held on March 15, 2013.
Complainant did not appear for the deposition. On appeal, Complainant indicates that he was
“depressed and dejected and could not sleep and failed to make the deposition as scheduled.”
Complainant, however, does not provide any evidence that he requested to reschedule his
March 15, 2013 deposition and was improperly not granted. Based on the foregoing, we find
that the AJ properly denied the hearing request.

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. (November 9, 1999) (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”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The Selecting Officer (SO) for the position at issue
indicated that during the relevant time period, she received a list of five qualified applicants,
which included Complainant’s name. The SO stated that she ranked the applicants’ resumes
against the evaluation factors listed in the position announcement which were: (1) experience
applying federal rules, regulations and policies related to procurement and acquisition
activities; (2) experience researching and analyzing data and information to produce forecast
plans and reports; (3) experience providing quotes, justifications, requisitions and funding
information to vendors pertaining to procurement activities; and (4) knowledge of the federal
budgetary rules, regulations and process to provide expert advice and guidance. The SO stated
that she selected a selectee because he ranked first out of the five qualified applicants and he
possessed current skill sets in all four evaluation factors that each applicant was evaluated
against. The SO stated that Complainant, however, was ranked fourth and his resume
indicated that he had experience, described in factor (1), up until 2007. Complainant indicated
that he retired from his employment at the Agency as a Product Assurance Branch Chief in
July, 2007. We note that the selectee’s resume indicated that at the time of the selection, he
was employed as a Program Analyst at the Agency since 2006.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
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to show that his qualifications for the position were plainly superior to the selectee’s
qualifications or that the Agency’s actions were motivated by discrimination. See Wasser v.
Department of Labor

, EEOC Request No. 05940058 (November 2, 1995). Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 11, 2015