Foster G.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Feb 7, 2018

0120180422 (E.E.O.C. Feb. 7, 2018)

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