Complainant,v.Julian Castro, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Feb 11, 2015

0120130868 (E.E.O.C. Feb. 11, 2015)

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

,
Complainant,

v.

Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 0120130868

Hearing No. 570-2012-00171X

Agency No. HUD-00155-2010

DECISION
Complainant filed a timely appeal with this Commission concerning his complaint of unlawful
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.. For the reasons set forth, we AFFIRM the
Agency’s decision, finding no discrimination.

BACKGROUND
The record reveals that, during the relevant time, Complainant was unemployed and that he
was not employed by the Agency when he applied for, and was not selected for, the Office of
Inspector General (OIG) positions at issue in this decision. Complainant filed an EEO
complaint and alleged that he was subjected to discrimination on the bases of age (over 40) and
veterans’ status, when he was not selected for the following OIG positions:

1. In November 2009, positions advertised under vacancy announcement numbers
10-HUDIG-020P and 10-HUDIG-0l0.

2. On February 1, 2012, positions advertised under vacancy announcement numbers l0-
HUDIG-060, l0-HUDIG-061, l0-HUDIG-085, 10-HUDIG-086, and 10-HUDIG-088P.

3. On June 2, 2010, positions advertised under vacancy announcement numbers l0-
HUDIG-182, 10-HUDIG-I83P, 10-HUDIG-I84P, 10-HUDIG-086P, 10-HUDIG-189P.
l0-HUDIG-208, l0-HUDIG-209, and 10-HUDIG-210P.

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4. On December 2, 2010, position advertised under vacancy announcement number 10-
HUDIG-090P.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
The Agency informed Complainant of his right to request a hearing before an EEOC
Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.

On September 19, 2012, an EEOC Administrative Judge (AJ) issued a decision without a
hearing finding that there was no genuine issue of material fact in dispute, and concluded that
Complainant had not been discriminated against as alleged. Specifically, the AJ found the
Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant
failed to rebut.

On November 5, 2012, the Agency issued a final order adopting the AJ’s decision.
Thereafter, Complainant filed the instant appeal.

ANALYSIS AND FINDINGS
Initially, the Commission finds that it has no jurisdiction over veterans’ status and such a basis
is dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1).

The Commission finds that Complainant failed to show on appeal why the AJ’s decision to
issue summary judgment was incorrect. The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for
summary judgment, a court’s function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party
must be believed at the summary judgment stage and all justifiable inferences must be drawn in
the non-moving party’s favor. Id. at 255. 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. If a case
can only be resolved by weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding, an AJ may properly consider summary
judgment only upon a determination that the record has been adequately developed for
summary disposition.
Upon review, we find that the issuance of summary judgment was appropriate as there are no
genuine issues of material fact. Initially, the record reveals that Complainant did not apply for
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vacancy announcement nos. 10-HUDIG-010; 10-HUDIG-060; 10-HUDIG-061. Additionally,
Complainant submitted incomplete applications for vacancy announcement nos. 10-HUDIG-
085, 10-HUDIG-182, and 10-HUDIG-208 because he failed to provide all the required
documentation. Moreover, the record indicates that Job Announcement 10-HUDIG-086 does
not exist; rather, 10-HUDIG-086P was posted and was properly accepted for investigation.
Furthermore, Complainant submitted a total of nine complete applications for vacancy
announcement nos. 10-HUDIG-020P; 10-HUDIG-086P; 10-HUDIG-088P; 10-HUDIG-090P;
10-HUDIG-183P; 10-HUDIG-184P; 10-HUDIG-I89P; 10-HUDIG-209; and 10-HUDIG-210P
for Criminal Investigator positions. The nine job announcements cover applications for four
Criminal Investigator positions. Of the four Criminal Investigator positions, two positions were
filled. The remaining two positions were cancelled; no selection was made; and the positions
were not re-advertised. Complainant's name was included in the Certificate of Eligibles for
vacancy announcement no. 10-HUDIG-020P. Complainant was interviewed for the position,
but Complainant was not selected. Complainant's name was included in the Certificate of
Eligibles for vacancy announcement no. 10-HUDIG-209. Complainant was not interviewed for
the position, and Complainant was not selected.

Regarding the selection concerning 10-HUDIG-020P, Assistant Special Agent-in-Charge
(ASAIC; hereinafter Agent 1) stated that selectee A had more of the qualifications they were
looking for at the time the position was filled. Agent 1 said that selectee A was a current
(1811) Criminal Investigator, who had already been through Federal Law Enforcement
training, and therefore could function immediately in the position with regard to the cases they
needed to work." Agent 1 explained that all the candidates interviewed for the position did
very well, but that Complainant and the third candidate would have to attend a two-month
training program at the Federal Law Enforcement Training Center (FLETC) to work in the
position. Agent 1 asserted that Complainant did not occupy an 1811 position at the time he
applied for the position, and that although Complainant had criminal and civil investigations
training, Complainant had not received training at FLETC.

Agent 1 further indicated that each Office of the Inspector General with statutory law
enforcement authority must certify completion of the Basic Criminal Investigator Training
Program at FLETC by each Inspector General, Assistant Inspector General of Investigations,
and Special Agent/Investigator, who will be exercising powers under the guidelines.
Significantly, Agent 1 said that all individuals exercising authorities under section 6(e) must
receive initial and periodic firearms training and qualification in accordance with FLETC
standards.

With respect to the second selection concerning 10-HUDIG-020P, ASAIC 2 (Agent 2) stated
that, after interviewing the candidates referred to him in the Certificate of Eligibles, selectee B
was selected for the position in Las Vegas. Agent 2 stated that Complainant was not
interviewed for the position because his name was not referred for selection. Agent 2 explained
that selectee B was deemed the best candidate for the position based on the fact that it was
critical to hire an individual who could immediately function in the position and carry a
caseload. Agent 2 explained that it was highly preferable that the individual hired for the
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position not have to go through the initial Federal Law Enforcement Training at the training
center in Glynco, Georgia. More importantly, according to Agent 2, candidates from the Las
Vegas area, who have had Federal Criminal Investigator experience, were considered the best
candidates and were the only candidates considered for the position. Agent 2 stated that the
only candidates interviewed for this position lived in the Las Vegas area and had Federal
Criminal Investigator experience. Agent 2 further indicated that selectee B lived in Las Vegas
and was already trained as a Federal Criminal Investigator, as he had already occupied a
position classified as an 1811 Criminal Investigator.

As to the two positions that were subsequently cancelled by the Agency, Special Agent in
Charge of the Southwest Region 6 (Special Agent), the selecting official for the position in the
Albuquerque Office, stated that announcements for the position were cancelled because at the
time there was a problem with the number of FTE assigned and distribution throughout the
Region. Special Agent further stated that, to this date, she was not able to announce the
position for Albuquerque and that no selection was made for the positions.

The second cancelled position was in Phoenix, Arizona, and the selecting official was ASAIC
3 (Agent 3) at the Las Vegas, Nevada office. Agent 3 asserted that the position was cancelled
after it was determined that the position was not needed in the Phoenix Office. Agent 3
explained that there was much speculation and discussion taking place within management as to
whether the position was truly needed in Phoenix, based on workload and internal issues such
as work product. According to Agent 3, the Certificate of Eligibles was returned unused, no
selection was made from the certificates, and the position remains unfilled to this date.

The Commission finds that Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons. Some of the positions were simply cancelled and there is no
indication that the cancellation decisions were motivated by discrimination. For most of the
other positions, Complainant did not clearly indicate in his applications that he had adequate
experience or qualifications as compared to the selectees. Additionally, the Commission finds
that Complainant failed to show that his qualifications for the Criminal Investigator positions
were plainly superior to the selectees’ qualifications or that the Agency’s actions were
motivated by discrimination. The Commission finds that Complainant failed to show, by a
preponderance of the evidence, that he was subjected to discrimination on the basis of age.

CONCLUSION
The Agency’s decision 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:
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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 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
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
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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
February 11, 2015