Emmanuel L.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0120142760 (E.E.O.C. Sep. 1, 2016)

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

Emmanuel L.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120142760

Agency No. ARCENASH13MAY01507

DECISION

On July 28, 2014, Complainant filed an appeal from the Agency’s July 1, 2014, final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal
timely and accepts it for de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant worked as a GS-11 Regulatory Specialist at the Agency’s Corps of Engineers
facility in Nashville, Tennessee. On June 25, 2013, Complainant filed an EEO complaint in
which he alleged he was discriminated against on the bases of disability (speech impediment /
cleft lip) and age (47) when he was not promoted to GS-12 in April of 2013. Complainant
identified the Chair of the qualifications review panel and the four panelists (P1 through P4) as
the responsible management officials. The panel was responsible for reviewing written
applications, conducting interviews, assessing the candidates’ relative qualifications, ranking
the candidates, and interviewing those candidates deemed to be among the best qualified.
After reaching a consensus as to which candidates were best-qualified, the Chair would

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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forward the panel’s recommendation to the Chief of Operations, who was the selecting official.
Fact-Finding Conference Transcript (CT) 65.

The panel determined the applicants’ qualifications by ranking them in three tiers, with the top
five being assigned to the first tier, the next five being assigned to the second tier, and the
remainder being assigned to the third tier. The panel had interviewed a total of fourteen
candidates, with the top ten being chosen from the first and second tiers and the remainder
being drawn from the third tier. Complainant and the four eventual selectees (S1 through S4)
were among those moved up to the interview stage. S1, S2, and S3 were unanimously
determined to be in the first tier, while all but one of the panelists had ranked Complainant and
S4 in the second tier. Investigative Report (IR) 144-46, 149-52, 154, 178, 189-90, 198-201;
CT 68-69, 140.

All of the candidates were asked the same set of interview questions. The interview scores of
the selectees ranged from 38 to 49. Complainant’s interview score was 24. He was ranked
11th out of the fourteen who were interviewed. IR 292, 314-18. The Chair and P1 testified at
the fact-finding conference that the panel was looking for qualifications demonstrating an
understanding of the Agency’s regulatory programs and experience with difficult and complex
projects, and that the written applications and interview responses of the selectees included
very detailed and specific descriptions of their prior experience and how it related to the
ranking factors while Complainant’s resume and interview responses were more generic in
nature. CT 69-81, 83, 100-03, 113-20, 125-26,

Upon completion of the interviews, the Chair and the panelists reached a consensus that S1,
S2, and S3 should be recommended to the selecting official. A fourth applicant was also
selected but this individual declined the offer. The panel then recommended S4, who it had
designated as one of two alternates.2 IR 306-07, 310-11, 314-22, 329-30, 333-38, 345-46,
348-404, 407, 409-11, 413; CT 64-65, 86-87, 127. Three of the four selectees were under the
age of forty and none had a medical condition. CT 20, 64-65, 82, 84, 130, 137, 140-44, 158-
60.

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.

2 The Chair and Panelist 1 were the only members of the panel to testify at the fact-finding
conference.
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ANALYSIS AND FINDINGS

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”).

The Commission cannot second-guess an Agency’s personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for making those
decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would
have to prove, by a preponderance of the evidence, that the Chair or any of the four panelists
were motivated by unlawful considerations of his age or disability when they did not
recommend him for promotion in April 2013. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000).

Complainant can prove the existence of a discriminatory motivation by presenting evidence
tending to show that the reasons articulated by the Chair or the Panelists for not recommending
him for promotion were pretext, i.e., not the real reason but rather a cover for discrimination.
St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008).

In nonselection cases such as the one now before us, Complainant could demonstrate pretext by
showing that his qualifications for the position were plainly superior to those of the Selectee.
Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other
indicators of pretext include discriminatory statements or past personal treatment attributable to
those responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected-group lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).

Complainant should bear in mind, however, that agencies have broad discretion to choose
among equally qualified candidates as long as the selection is not based on unlawful
considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478
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(Jul. 31, 2015). They may select candidates with fewer years of experience if they believe that
such candidates are best qualified to meet the needs of the organization. See Complainant v.
Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a
candidate as long as the preselection is not premised upon a prohibited basis. See
Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

When asked by the investigator why he believed that he was better qualified than any of the
selectees, he replied that he had more years of experience in the Agency’s regulatory program
than they did. CT 20-25. He also testified that, to his knowledge, S1 had been preselected.
CT 26-29. He conceded, however, that the Selectees could have been better qualified than him
even if they did not have as many years of federal service. CT 39-40. When asked if he
thought his age was reason for his nonselection, he replied that he did not know. CT 20-41.
When asked whether he believed his medical condition was a factor, he asserted that he was
not afforded the opportunities that were given to S1 and S2 to take training and gain experience
in complex regulatory projects without explaining how he believed that his condition had
factored into their decision. CS 29-31. The only other evidence he submitted beyond his own
testimony was that of a Coworker, who stated that she believed that the Chair of the selection
panel was trying to build a leadership consisting of younger males, and that she did not believe
that Complainant “fit her mold.” CT 164. But she too conceded that she did not know this to
be a fact. CT 159-60. Neither Complainant’s testimony nor that presented by his Coworker is
sufficient to contradict the explanations put forward by the Chair and P1 for not recommending
Complainant for promotion or cause one to question their veracity and credibility as witnesses.
Accordingly, we find, as did the Agency, that Complainant has not sustained his burden of
proof.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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. The requests 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 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 (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
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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

September 1, 2016
Date