Franchesca V.,1 Complainant,v.Carrie Hessler-Radelet, Director, Peace Corps, Agency.

Equal Employment Opportunity Commission

Sep 9, 2016

0120142746 (E.E.O.C. Sep. 9, 2016)

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

Franchesca V.,1
Complainant,

v.

Carrie Hessler-Radelet,
Director,
Peace Corps,
Agency.

Appeal No. 0120142746

Hearing No. 570-2012-01175X

Agency No. PC-12-06

DECISION

Complainant filed an appeal from the Agency’s final order dated June 11, 2014, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In her complaint, dated May 5, 2012, Complainant, an applicant for employment at the
Agency, alleged discrimination based on age (over 40) when she was not selected for the
position of Field Based Regional Recruiter, FP-0301-07/09, Providence, Rhode Island,
Northeast Region, under Vacancy Announcement DPC11-A0197-SH. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). On May 20, 2014, the AJ issued a
decision without holding a hearing, finding no discrimination. The Agency’s final order
implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. Complainant (49 years old at the time of the alleged
incident) indicated that on January 2, 2012, she applied for the Field Based Regional Recruiter
position at issue which was located in Providence, Rhode Island. The work of the position
involved: the application process (recruiting, screening, and nominating volunteer candidates)
and outreach (marketing, networking, and public relations to find potential volunteers). The
Agency Human Resource Management (HRM) office reviewed the applications for the position
at issue by means of its automated “Avue” scoring system, and referred to the Selecting
Official (SO) a list of the 35 best qualified applicants, consisting of applicants who scored 85 to
100, including Complainant who had a score of 90 (ranking her in a tie for 25th ).

SO initially interviewed, via telephone, a shorter list of applicants, including Complainant,
from the 35 best qualified applicants. SO then scheduled a formal interview with Complainant
to be held on January 26, 2012, in the Boston Regional Recruitment Office. Three panelists,
including SO, interviewed five applicants, including Complainant, using question sheets
designed for the position at issue that were prepared and approved utilizing the Avue system by
the HRM. The panelists unanimously agreed to hire a selectee (32 years old), who scored 95
by Avue scoring system, described above, and who stood out in her interview performance,
i.e., her answers were well organized and showed decisiveness, competence, and
professionalism. The panelists indicated that Complainant interviewed poorly and gave them
concerns about her ability to effectively work with potential recruits, i.e., she did not directly
answer some questions or provided vague, irrelevant information in response to some
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questions. Specifically, the panelists stated that the selectee’s interpersonal and communication
skills outweighed Complainant’s greater work experience.

After a review of the evidence in the record, the AJ determined and we agree that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting her for the
position at issue. Furthermore, Complainant failed to show that her qualifications for the
position were plainly superior to the selectee’s qualifications. See Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find
that Complainant failed to show that the Agency’s action was motivated by discrimination as
she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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:

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
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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

September 9, 2016
Date