Darren M.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity Commission

Mar 12, 2019

2019000584 (E.E.O.C. Mar. 12, 2019)

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

Darren M.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.

Appeal No. 2019000584

Agency No. 57-2017-00134

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final decision, dated
September 19, 2018, concerning an equal employment opportunity (EEO) complaint claiming
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 accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Budget Officer for the Agency’s Office of
Financial Resources Management, at the National Institute of Standards and Technology in
Gaithersburg, Maryland.

Complainant applied for a Deputy Chief Financial Officer position (Vacancy Announcement #
NISTOFRM-2017-0004-MAP, along with approximately fifty other individuals. After a
consideration of a set of eligibility questions, Complainant was one of twenty-five candidates
chosen for the Merit Certificate. The Agency granted interviews to four applicants, including
Complainant. Thereafter, Complainant learned that he was not selected for the position.

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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Believing that his non-selection was discriminatory, Complainant contacted an EEO Counselor.
Informal efforts to resolve Complainant’s concerns were unsuccessful. On April 4, 2017,
Complainant filed a formal complaint based on age (born 1962), race (Hispanic), and national
origin (Puerto Rico). The selectee was an Asian woman born in 1978.

After an 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). Complainant timely requested a hearing
but subsequently withdrew his request. he Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The Agency determined that Complainant established a prima facie case. Next, the Agency
found that management presented legitimate, non-discriminatory reasons for not choosing
Complainant. According to the Selecting Official (SO), who was also Complainant’s supervisor,
Complainant did not perform well in his interview. Specifically, the SO noted that Complainant
had a difficult time discussing the similarities and differences between “enterprise risk
management” and “internal controls management.” Also, the Agency found that Complainant
did not provide a concrete response as to his view of the role of Deputy CFO. Following the
interview, the SO was left with the impression that Complainant was an acceptable, but not
outstanding, candidate. The Agency found, in contrast, that the Selectee’s interview went “quite
well”. The Agency found that the selectee provided substantive answers, had an excellent
financial background, program knowledge from working in OFRM, excellent communication
skills, and had served in the Deputy CFO for three years while at Ginnie Mae.

The Agency found that Complainant did not meet his burden in showing pretext. While
acknowledging that Complainant had more experience, the Agency noted that length of service is
not dispositive to its selection determination. Further, the Agency reasoned that Complainant did
not show that any disparities in his qualifications to those of the Selectee were “such that no
reasonable person in the exercise of impartial judgment could have selected her over him.”

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

Standard of Review

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Timeliness of Appeal

In response to the instant appeal, the Agency argues that Complainant’s appeal was untimely
filed. According to the Agency, Complainant received its final decision on September 21, 2018,
and had until October 21, 2018 to file his appeal. The appeal, however, was not filed until
October 30, 2018, nine days after the deadline.

Complainant submits evidence that his appeal was mailed on October 19, 2018, to both the
Commission and the Agency. Therefore, we find the appeal is timely.

Disparate Treatment – Non-selection

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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

As set forth above, Complainant applied, but was not selected for the Deputy Chief Financial
Officer position. The Agency contends, quite simply, that neither Complainant nor the Selectee
was “plainly superior” and that the Selectee performed notably better during her interview. After
the interview, SO rated Complainant as “Acceptable” and the Selectee as “Outstanding”.
Complainant was considered to have a “less diversified financial background” than Selectee.
The Selectee was found to have “significant institutional knowledge from her four years at NIST
as a Financial Statements Group Leader.” She exhibited better communication skills and vision
for the position.

On appeal, Complainant attempts to show pretext by arguing that he was “plainly superior”, was
told he was not chosen because he was too valuable to the Budget Office, and the Agency
deviated from its procedures when it had only one individual conduct the interviews. A review
of the record, however, does not support Complainant’s belief that he was “plainly superior” to
Selectee. While Complainant may have had longer experience, the Selectee’s was more varied.
Further, his temporary experience as the Deputy CFO at the Agency was not objectively greater
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than the Selectee’s years in the same position at another agency. Both Complainant and Selectee
were qualified and granted interviews. The SO’s notes reflect that Selectee performed better in
the interview. As for the remark that Complainant was too valuable to the Budget Office, and
therefore was not chosen, the SO disputes making such comment. Moreover, we find that even
if stated, it is not indicative of discriminatory animus. Finally, as to the absence of an interview
panel, the Agency states that its policies do not require the use of a panel and that for the position
at issue it was appropriate to have the SO select his Deputy. Complainant has not established a
nexus between his age, race, national origin and the Agency’s decision not to select him for the
Deputy CFO vacancy. Further, he has not met his burden and shown that the Agency’s proffered
reasons were pretext to mask unlawful discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final 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.
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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

March 12, 2019
Date