Denis M.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

May 7, 2019

0120182462 (E.E.O.C. May. 7, 2019)

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

Denis M.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120182462
Agency No. 54-2018-00007

DECISION

On July 13, 2018, 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
June 18, 2018, 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.

ISSUES PRESENTED

Whether the Final Agency Decision, (FAD) correctly determined that Complainant was not
subjected to discrimination based on his race, color, national origin, and age when he was not
selected for the position of Lead Meteorologist, GS-1340-14, announced under Vacancy
Announcement Number NWS-NCEP-2017-0086.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Meteorologist Marine
Forecaster, GS-1340-13 at the Agency’s National Oceanic and Atmospheric Administration,

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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(NOAA) facility in College Park, Maryland. On December 20, 2017, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), color, national origin (Zambia), and age (59) as set forth above.

Complainant explained that he was interviewed for the position in question by two interviewers,
but he received no feedback on how he performed during the interview; and that neither of the
interviewers, including the Operations Branch Chief, his first-line supervisor, (S1) asked him about
his race, color, or age during the interview. Nonetheless, he stated his belief that his protected
classes should be obvious to them given that he has worked with both interviewers and had shared
information with almost all his colleagues during casual conversations, including the two
interviewers.

S1 affirmed that Complainant applied for the position in question, adding that three candidates
were interviewed including Complainant, the selectee, and another employee. He testifies that all
interviews were conducted in person and he and A2, the second interviewer, interviewed
Complainant. S1 indicated, and A2 affirmed, that a prepared list of program-related questions was
asked of all candidates and that interview notes were taken. He explained that he notified all
candidates regarding the follow-up steps to the interview process; and that all candidates may have
been given feedback during the interviews, although he did not recall specific details. He testified
that at no time was the race, color, national origin, or age of any candidate, including Complainant,
discussed or considered as part of the process. He indicated that he learned of Complainant’s race,
color, and national origin when he first met him but asserted that he was not aware of
Complainant’s age prior to being contacted regarding this matter. S1 explained that the decision
to choose the selectee was based on the selectee’s’ sustained high-level of performance, his
leadership skills, and the receipt of an award for excellent customer service for providing
significant weather information from the OPC to its customers and partners via social media.

A2 stated that Complainant was not selected for the position because he was not the most qualified
candidate. He asserted that Complainant minimally answered some of the questions in the
interview or failed to fully answer some questions; and that Complainant did not demonstrate that
he was the most qualified candidate to serve as a Senior Marine Forecaster and lead the forecast
operations.

Complainant alleged that the selectee to the position and a coworker (C1) contributed to his non-
selection by providing information, which damaged his professional reputation, to S1. He alleged
that the selectee stored what he considers damaging information about him on the Agency’s
internal drive under a folder entitled “WhatAJoke;” and he believed that C1 used the posted
information to influence S1’s selection decision after both C1 and S1 spoke about a professional
decision Complainant had made which C1 did not like. Complainant surmised that S1 thought
that he made a mistake regarding the professional decision; and that S1’s selection determination
was influenced by that assumption. Complainant explained that in response to his inquiry about
why the selectee was chosen for the position in question, S1 had described the selectee as having
interviewed well, being nice and very helpful, which Complainant considered the characteristics
of a person and not the criteria for selecting someone.
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Complainant stated that he interpreted S1’s comments that “he is nice” as the selectee “is not an
African American;” and that he also interpreted “he interviewed well” as the selectee “spoke better
English than Complainant.” He asserted that the reasons cited by S1 were not part of the interview
process. Complainant stated that he also asked S1 why he did not select him; and that S1 responded
“attention to detail.” This Complainant believed is how S1 viewed him, and this was also not
related to the interview questions. Complainant asserted that in fact, S1 was referring to the errors
that had been brought to his attention by C1 in collaboration with the selectee. Complainant added
that he asked S1 if he considered diversity in his selection and S1’s response was “No. Diversity
was not a consideration.” Complainant believed this illustrated how S1 totally disregarded the
presidential executive order about diversity in the Federal government, which was signed by the
president in 2011.

S1 stated that he is unable to respond to Complainant’s assertion that the selectee provided C1
with damaging information about Complainant because he is unaware of any such conversations.
S1 stated that he remembers providing clarification regarding management’s consideration of
diversity in all decisions, including selections for positions. He recalled explaining to the EEO
counselor that the selected candidate demonstrated energy and leadership, which he says were
overarching factors in the selection.

Among other things, A2 stated that the selectee seized the moment during the interview process
and answered all questions completely and beyond by offering some suggestions as to the present
and future challenges facing the unit. He denied that any damaging information about
Complainant provided by the selectee and C1 influenced the selection process. He indicated that
he first learned of the assertion when he was contacted regarding the instant complaint. He stated
that this issue was not a factor in the selection decision nor was there any discussion between him
and S1 at any time about this topic.

A2 also testified that based on his personal interactions and discussions with both individuals, he
did not believe that Complainant was as strong a student of marine meteorology as the selectee.
He explained that the Senior Marine Forecaster position requires meteorological knowledge,
decision-making skills, and the ability to collaborate with coworkers and associates across the
National Weather Service (NWS) and internationally, and the ability to lead the staff to make the
best decisions and forecast decisions possible. He stated that the selectee demonstrated the
necessary skills and capabilities showing his acumen and ability to do those things.

Complainant stated that he also asked S1 if he considered advanced education and S1’s response
was “as long as the selectee meets the minimum qualification that’s all that matters;” and that S1
even gave him an example of himself: “Look at me, I only have a Bachelors, and I am the Branch
Chief.” Complainant asserted that in response to his inquiry as to whether S1 considered his
experience and contributions to the unit, S1 stated that he did not consider anything Complainant
did before he, S1, came to the unit in 2016.

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A2 stated that Complainant is pleasant to engage with and is eager to fill in shifts when asked,
adding that Complainant tends to work more in isolation than others in the Forecast staff and is
not as engaging with his peers on collaborative forecast decisions. He explained that a lack of
serious engagement concerning the potential for upcoming weather and the tendency to work in
isolation are not the best traits for a person in a leadership position in an operational weather center.
He also stated that the selectee had significant experience with the federal government and in the
private sector.

Complainant stated that he asked S1 if he did not select him because he is black; and that S1
paused, looked away briefly, smiled then stated, “No, not at all.” Complainant believed when the
EEO Specialist at NOAA initially interviewed S1 regarding his decision to choose the selectee, S1
asserted that the selectee had a better perspective of where the unit needed to go. Complainant
stated that was clear that the unit was moving in the right direction because of procedures that he
developed.

Complainant also believed that S1’s may have felt that he was too old to come up with new ideas
and pursue them. He added that he was not in any way advocating for others but the pattern has
trended toward hiring and promoting younger people who can relate to social media; that the most
recent promotions within the unit were of younger people; and that this supports his contention
that his age also played a role in the decision to choose the selectee, who is younger than he is,
when Complainant is more qualified for the position than the selectee based on his advanced
academic and professional qualifications in meteorology. He also indicated that the selectee
falsified information about the number of years he was a GS-13 level employee in his application.

Complainant believed that he would have been selected if S1 had used the NOAA Manager’s
Hiring Guide, which stresses the importance of focusing on a candidate’s knowledge, skills, ability
and specific experience related to an advertised position. Complainant further cited his belief that
the selection decision in question was a prohibited personnel practice and violated the EEO laws.

S1 testified that there were no specific qualifications that he can identify which Complainant did
not possess which made him less qualified for the position. He explained that his decision focused
more on the selectees’ numerous achievements; and that given that the position for the Senior
Marine Forecaster was vacant, several eligible forecasters in the branch were afforded an
opportunity to serve a temporary promotion. He reported that Complainant served in the position
for three pay periods, and the selectee also serve in the position for the same length of time.

Complainant indicated that D1, a former colleague, could attest to his qualification for the position
in question. D1 stated, in pertinent part, that that he did not know of any qualifications
Complainant possesses that the selectee did not possess which made Complainant less qualified or
more qualified other than Complainant has a few more years working for the Agency, adding, that
he could not necessarily state that he believed Complainant should have been selected because
both candidates, with whom he had previously worked and had a good working relationship,
appeared well qualified for the positions since they have both worked at the unit for the past
decade.
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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 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.

CONTENTIONS ON APPEAL

In his appeal statement, Complainant, among other things, reiterates his allegations and contends
that the Agency failed to develop an appropriate factual record because the investigator only
obtained statements from Complainant, the two responsible management officials that were
involved in the non-selection and one of Complainant’s coworkers but not the selectee and C1.
He also maintains that the investigator failed to ask the responsible management officials relevant
questions; and failed to obtain relevant documents substantiating the Agency’s articulate legitimate
non-discriminatory reason for the non-selection; and that the Agency failed to produce enough
evidence during the course of the investigation.

Complainant also asserts that the investigator interfered with his complaint because the
investigator did not submit all of his evidence into the Report of Investigation (ROI). Therefore,
he contends that the ROI is deficient; that sanctions are therefore appropriate; and that OFO should
grant his appeal, vacate the FAD, and order the Agency to conduct a supplementary investigation.

The Agency did not submit a brief in support of its FAD.

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

To prevail in a disparate treatment claim, a 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 initially 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14.
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The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
a 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, 143
(2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, age, and national origin; we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. S1, the selecting official, and A2 explained that while
both Complainant and the selectee were strong candidates for the position, the selectee was chosen
because he possessed significant years of applicable leadership and other experiences that made
him more desirable; and that he was the recipient of several relevant awards.

In a nonselection case like this, one way that a Complainant can show pretext is by establishing
that the alleged disparities in qualifications between them and the selectee are “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th
Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). We find that
Complainant has not made such a showing here.

In an effort to show pretext, Complainant asserted that S1 chose the selectee, a younger White
candidate, over him for the position in question even though he possessed more advanced
education and more years of experience. However, the evidence does not support Complainant’s
assertion because his impressive education and experience did not make him better qualified than
the selectee; the position did not require a graduate degree; and greater years of experience do not
necessarily make an individual more qualified for a particular position. We have repeatedly held
that mere years of service, or length of service, does not necessarily make an individual more
qualified to meet the needs of an organization. Kenyatta S. v. Dep’t of Homeland Security, EEOC
Appeal No. 0120161689 (Sept. 21, 2017); Collins v. Dep’t of the Treasury, EEOC Request No.
05A41248 (Oct. 5, 2004). Neither does years of service automatically make an individual more
qualified. Ford v. Dep’t of Health and Human Services, EEOC Appeal No. 01913521 (Dec. 19,
1991). The Commission will not substitute our judgment for the judgment of selecting officials
familiar with the present and future needs of their facility and therefore in a better position to judge
the respective merits of each candidate, unless other facts suggest that proscribed considerations
entered into the decision-making process. See Williams v. Dep’t of Education, EEOC Request No.
05970561 (Aug. 6. 1998). The evidence shows that S1 exercised his discretion to choose among
equally qualified candidates when he chose the selectee over Complainant whose qualifications
were not apparently superior to those of the selectee.2

2 Moreover, an agency has even greater discretion when it is filling management level or
specialized positions. Hickman v. Department of Justice (Drug Enforcement Agency), EEOC
Appeal No. 01A11797 (December 20, 2001) (citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir.
1987)).
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On appeal, Complainants questions the adequacy of the Agency’s investigation. Upon review of
the entire record, the Commission is not persuaded that the investigation into Complainant’s
complaint was incomplete or improper. The Commission notes that Complainant did not request
a hearing before an EEOC Administrative Judge. Had he done so, the hearing process would have
afforded him the opportunity to conduct discovery and to cure any alleged defects that he believes
are in the record. Thus, despite the above referenced arguments, the Commission finds that the
investigation was properly and adequately conducted. Because Complainant did not request a
hearing, we can only evaluate the facts based on the weight of the evidence presented to us. We
therefore find that Complainant failed to substantiate his allegation by a preponderance of the
evidence that the selecting official was motivated by discriminatory animus when he did not select
Complainant to the position for which he applied; and that discrimination did not occur.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the FAD properly found that Complainant failed to
demonstrate he was subject to discrimination as alleged; the Agency’s final decision is
AFFIRMED.

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

May 7, 2019
Date