Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 27, 2013

0120121214 (E.E.O.C. Jun. 27, 2013)

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

,
Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120121214

Hearing No. 410-2010-00396X

Agency No. 9R1M10033

DECISION

Complainant filed an appeal from the Agency’s December 21, 2011 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. For the following reasons, the Commission AFFIRMS the Agency’s
Final Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Environmental
Protection Specialist at the Agency’s Air Force Material Command facility in Robins Air
Force Base, Georgia. On December 21, 2009, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of race (African-American), sex (male),
and age (55) when:

On November 16, 2009, Complainant was not selected for the position of
Environmental Protection Specialist, GS- 0028-11.

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 EEOC
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
April 27, 2011, and April 28, 2011. Thereafter, the AJ issued a decision on November 29,
2011.

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In his Decision, the AJ found that Complainant established a prima facie case of discrimination
based on race and sex, but not age. Specifically, the AJ found that Complainant applied for
the identified position, Complainant was found qualified for the position, and Complainant was
not selected. The record shows that the selectee (SE) is a White female, and was 51 years old
at the time of the selection. The AJ found that SO was unaware of either candidates exact age,
but knew they were both in their 50’s.

The AJ noted that Complainant was treated the same as the other candidates. The AJ found
that Complainant was given an interview, asked the same questions, and scored by the same
selecting official. The AJ also noted that the selecting official (SO) stated that Complainant did
not perform at the interview as well as SE and that Complainant’s overall score during the
selection process was lower than SE’s score and that is why SE was selected. The AJ did not
find that Complainant presented evidence from which pretext could be established.

The AJ concluded that Complainant did not show that his race, sex, or age motivated SO’s
selection decision. The Agency subsequently issued a Final Order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

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 or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. 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 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, we find substantial evidence supports the AJ’s Decision finding no
discrimination. Specifically, we find that Complainant established that he was qualified for the
identified position, he applied and was not selected, while another candidate, not in his
protected race and sex groups, was selected. We find, as did the AJ, the evidence shows that
SO is not significantly younger than Complainant and nothing in the record indicates that
Complainant either appears much older than SE, or that SE appears to be significantly younger
than Complainant. Accordingly, we find that Complainant did not establish a prima facie case
of discrimination based on age. Even if we did find a prima facie case of age discrimination,
we still find no discrimination on the basis of age.

We find, as did the AJ, that SO articulated legitimate, non-discriminatory reasons for his
selection. Specifically, we find, as did the AJ, that SO considered the projects that
Complainant described when asked about his experience. The record shows that both
Complainant and SE had many years of experience with the Agency that made them both well
qualified for the position. SO states that he believed Complainant overstated his involvement,
while SE described known projects she supported and the processes she worked to improve.
We find that Complainant failed to show that his qualifications for the identified position were
plainly superior to SE’s qualifications or any other evidence that the SO’s selection was
motivated by race, sex, or age discrimination. See Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995). We find the evidence supports the AJ’s
determination that Complainant did not show that more likely than not SO’s reasons for his
selection were untrue and a pretext to mask discrimination.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

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.

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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

June 27, 2013
Date