Foster G.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 20180120180422 (E.E.O.C. Feb. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Foster G.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 0120180422 Hearing No. 570-3026-00056X Agency No. 15-56-35 DECISION On November 8, 2017, 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 October 11, 2017, final order concerning her equal employment opportunity (EEO) complaint alleging 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 following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Acquisition Specialist, GS-1101-13, with the Agency in Alexandria, Virginia. Complainant had been in her position since 2008. During the relevant time the Director of the Vendor Management Division was Complainant’s first level supervisor and she had been reporting to him since August 2014. 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. 0520180026 2 Complainant states that she applied for pre-retirement training in August 2014 and in September 2014, her supervisor had to sign paperwork for her to attend the training. Complainant states at this time, her supervisor asked if she planned on retiring soon. On November 20, 2014, the Agency posted a vacancy under Vacancy Announcement Number CIO-2015-0031, for an IT Acquisition Specialist, GS-1101-14 on USAJobs. The position was located within the Vendor Management Division, Office of Program Administration, in the Office of the Chief Information Officer (OCIO). Complainant’s supervisor was the Selecting Official for the position. On November 29, 2014, Complainant applied for the position at issue. The Office of Human Resources forwarded the Selecting Official 32 names for consideration. The Selecting Official selected twelve names to interview, eleven of whom accepted and were interviewed. Complainant was among those selected to be interviewed. The Selecting Official created the questions for the interview and all candidates were asked the same five questions. The Selecting Official requested that the Deputy Director for the Office of Program Administration Organization serve on the interview panel with him. The interview panel did not create a final score for applicants. The interview panel members discussed the applicants’ performance following their interviews and determined whether to select an individual for a second interview. The panel selected four candidates for a second interview. Complainant was not selected for a second interview. Of the remaining four candidates, the Selectee was chosen for the position. On March 24, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (62) when: On February 18, 2015, Complainant was notified she was not selected for the position of Information Technology (IT) Acquisition Specialist, GS-1101-14, advertised under Vacancy Announcement CIO-2015-0031. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing. The AJ adopted the Agency’s statement of undisputed facts and issued a decision without a hearing finding no discrimination on September 28, 2017. The AJ found Complainant failed to demonstrate that her qualifications were plainly superior to those of the Selectee such that a genuine issue of facts exists that the Agency’s explanation was a pretext for age discrimination. The Agency subsequently issued a final order on October 11, 2017. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 0520180026 3 On appeal, Complainant argues that her credentials were superior to those of the Selectee and that her application, experience, and knowledge were ignored. Complainant notes that she was not called for an interview until she raised the question with the Selecting Official. Complainant states that she had four years more experience at the Agency, almost 11 years more federal government service, and over four years more time in grade than the Selectee. Complainant also notes that she scored a 95.8 on the applicant score report from the USAJOBS application while the Selectee scored a 93.4. She states that she did more contract solicitation pre-award work and more task order pre-award work than the Selectee and that she was 31 years older than the Selectee. Additionally, Complainant notes that the Selecting Official at one point had asked her if she intended to retire. In response to Complainant’s appeal, the Agency notes Complainant implied that the Selecting Official’s question about whether she was going to retire was discriminatory. However, the Agency noted that Complainant admitted in her deposition that the question arose on one occasion in response to her request to attend retirement training. The Agency stated that even if Complainant established a prima facie case of discrimination, it had legitimate, nondiscriminatory reasons for not selecting her. The Agency states it does not dispute Complainant’s qualifications as she presents them, and Complainant has not argued that the Selectee’s qualifications as listed in her resume were wrong or fraudulent. The Agency notes Complainant was evaluated by two managers who unanimously agreed that she not be selected for a second round of interviews. Both managers determined Complainant did not perform well in her interview. The Agency states that Complainant’s combination of experience and education, combined with poor performance during the interview process, did not measure up to the Selectee. Specifically, the Agency noted the duties of the GS-14 IT Acquisitions Specialist went beyond a contracting officer’s representative or having worked on a large number of acquisitions. The Agency noted that the position required the Acquisitions Specialist serve as the strategic planner for all of OCIO. The Agency noted that the Selecting Official explained that what made the Selectee the “most qualified candidate is that she had subject knowledge and expertise within [the Agency], but not only within [the Agency], but within previous jobs supporting the Army on a program that involved the strategic and actual implementation of process improvements and quantitative, to include that she was a member of the OCIO, OCFO, business process and re-engineering team.” Further, the Agency argues Complainant cannot establish that the Agency’s reasons for not hiring her were pretext for age discrimination. 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 (EEO MD-110), at Chap. 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 0520180026 4 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”). 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). In the present case, the Agency articulated a legitimate, nondiscriminatory reason for its actions, that based on her experience and interview performance Complainant was not chosen to move to the second round of interviews. The Agency noted that both management officials on the interview panel independently came to the conclusion that Complainant performed poorly during the interview process. Moreover, the Agency stated that Complainant was given fair consideration by the Selecting Official and the other participating manager, but they ultimately decided the Selectee was the best qualified based on a combination of professional experience and interview. Complainant contends that she was not called for an interview until she raised the question with the Selecting Official. The Agency explained that due to technical difficulties outside of his control, the Selecting Official did not receive Complainant’s application when he first received the certificate of eligibles for the position. Following communication from Complainant, the Selecting Official was able to see and review Complainant’s application. No evidence has been presented that the delay in forwarding Complainant’s name to the Selecting Official was connected to her age. Complainant states that at one point the Selecting Official had asked her if she intended to retire. The record reveals that in August 2014, prior to the posting of the vacancy at issue, Complainant applied for pre-retirement training and in September 2014, her supervisor asked if she planned on retiring soon. We note the question from her supervisor occurred on one occasion in response to Complainant’s request to attend retirement training. We find this does not constitute evidence of pretext for the subsequent nonselection at issue in this case. Upon review of the record, we find that the AJ properly found that the present complaint was suitable for summary judgment. We find that the record is adequately developed and there are 0520180026 5 no disputes of material fact. In the present case Complainant failed to show that her qualifications were plainly superior to those of the Selectee. We find, as did the AJ, that nothing in the evidence presented shows that Complainant’s age played any role in the conclusions reached by the panel members. CONCLUSION Accordingly, the Agency’s final order finding no discrimination 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. 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). 0520180026 6 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 February 7, 2018 Date Copy with citationCopy as parenthetical citation