Homer B.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 3, 2016

0120141018 (E.E.O.C. Mar. 3, 2016)

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

Homer B.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120141018

Agency No. 200P-0010-2013102055

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 2,
2013, finding no discrimination concerning his 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 decision
finding no discrimination.

BACKGROUND

In his complaint, dated April 3, 2013, Complainant, an applicant for employment at the
Agency, alleged discrimination based on age (over 40) when on February 12, 2013, he learned
that he had not been selected for the position of Contract Specialist, GS-1102-07, under
Vacancy Announcement Number VG-13-Ale-821222.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency thus issued its final Agency decision concluding that
it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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

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), 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 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection.

The Selecting Official (SO), a Supervisory Contract Specialist, stated that the position at issue
was a GS-7 entry level with promotion potential to GS-9. The job duties involved completion
of reviews of “sole-source” requirements for contracting, conducting market analysis,
recommending appropriate methods of procurement, conducting negotiations for procurement,
providing signature authority, and executing contract awards within warrant authority. The SO
indicated that she received the certificate list of qualified candidates from its Human Resources
office and then, she and a Deputy Network Contract Manager interviewed those qualified
candidates, including Complainant, asking the same questions of each qualified candidate for
the position at issue.

The SO stated that she initially chose a first selectee who received an overall score of 13 points
after the interview but that person declined the offer. The SO then selected a second selectee
with an overall score of the same 13 points, who was an Agency employee working as a
medical reimbursement technician under the supervision of a Supervisory Contract Specialist,
who provided high recommendations for the second selectee. The SO indicated that the second
selectee, however, ultimately did not get the position because he was found not suitable for the
required moderate risk position at issue under the security background investigation. The SO
indicated that she then decided not to make a third selection because she did not feel she found
a candidate that was customer service oriented based on the interview results for the remaining
candidates, i.e., Complainant and another candidate both received the next highest score of 11
points. Furthermore, stated the SO, due to the impending office relocation, she was required
to cancel the vacancy at issue and to request a new recruitment after the relocation. With
regard to Complainant, the SO noted that he never worked as a contracting specialist; his
contracting related work occurred so long ago that he needed a refresher course and training in
order to perform the work; he received a low overall score of 11 points; and under the rating
document pertained to “Technical” skills, he rated himself “less than satisfactory.”

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After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for not selecting him for the position and cancelling its vacancy
announcement. Furthermore, Complainant failed to show that his qualifications for the
position were plainly superior to the selectees’ 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 actions were motivated by discrimination as
he alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. 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).

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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

March 3, 2016
Date