U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irvin C.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120142352
Agency No. HHS-CDC-0228-2013
DECISION
Complainant filed an appeal from the Agency’s October 12, 2014, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
§2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.2 For the following reasons, the Commission AFFIRMS the Agency’s
final decision finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chemist, GS-
1320-11, in the Persistent Organic Pollutants (POPs) Laboratory, Organic Analytical
Toxicology Branch (OATB), at the Agency’s National Center for Environmental Health
(NCEH or Center), Division of Laboratory Science (DLS). Complainant’s first level
supervisor (S1) during the relevant time was a GS-14 Supervisory Research Chemist, and the
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.
2 We note that Complainant initially filed his appeal on June 8, 2014, prior to the Agency’s
issuance of a final decision. Subsequently, the Agency issued a final decision on
Complainant’s complaint. Although Complainant does not submit a brief in support of his
appeal we deem Complainant’s submission an appeal from the Agency’s October 12, 2014
final decision.
0120142352
2
Chief of the POPs Laboratory. Complainant’s second level supervisor (S2) during the relevant
time was the Chief, OATB.
From October 2011 to November 2011, the Agency advertised a vacancy for a GS-12 Chemist
position under Vacancy Announcement Number HHS-CDC-MP-12-550061. Complainant did
not apply for that position. The Selectee applied, made the merit promotion certificate of
eligibles, and was chosen to fill the position. The Selectee began working as a GS-12 Chemist
in November 2011.
Subsequently, in a March 8, 2013 staff meeting, S1 announced two Team Lead positions
would be available at the GS-12 grade. On March 15, 2013, electronic mail messages were
sent to all Center employees describing both detail opportunities and the requirements to apply.
One detail was for a Chemist to be in charge of the day-to-day activities of the sample
preparation activities within the POPs Laboratory (Team Lead for the Prep Team). It was
noted that candidates had to be at the GS-12 level. The other detail was for a high resolution
mass spectrometry operator within the POPs Laboratory. Candidates at the GS-11 or GS-12
levels were encouraged to apply; however, it was noted that a promotion was not available.
The Selectee who was previously chosen for the GS-12 Chemist position in 2011 applied for
the Team Lead detail for the Prep Team and was chosen for the position.
On June 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), and age (over 40) when:
On March 28, 2013, Complainant became aware that he was not given the opportunity
to apply for the Team Lead position for the Prep Team which was advertised under
Vacancy Announcement Number HHS-CDC-MP-12-550061.
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.
In its final decision, the Agency noted that Complainant did not establish a prima facie case of
discrimination since he did not show that he was treated differently from similarly situated
employees. The Agency noted that on March 15, 2013, the Team Lead, GS-12 position was
announced via electronic mail to all NCEH employees, including Complainant. The Agency
noted that Complainant stated he was aware the Team Lead position was being announced and
of the eligibility requirement. The Agency noted Complainant stated he did not apply because
he felt he was not qualified.
The Agency stated that even if Complainant established a prima facie case of discrimination, it
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency
0120142352
3
noted that S1 stated that during October 2011, the Agency advertised for a GS-12 Chemist
under Vacancy Announcement HHS-CDC-MP-12-550061. S1 stated he provided input to his
supervisor about the qualifications that were needed for a Chemist at the GS-12 level. S1
noted that the Vacancy Announcement for the GS-12 Chemist was unrelated to the March 15,
2013 announcement for the Team Lead position. Further, S1 stated Complainant was notified
of the October 2011 GS-12 Chemist opportunity in the same way everyone else was notified.
The Agency recognized that S1 also stated that at the March 8, 2013 group meeting, which
Complainant attended, he announced that two detail positions would be available and that both
would be at the GS-12 grade. S1 also noted the March 15, 2013 electronic mail message was
issued to all Center employees. S1 noted that Complainant asked him permission to apply for
one of the details and S1 granted him permission. However, S1 noted that Complainant did
not apply for the detail. S1 stated that only the Selectee applied for the Team Lead detail at
issue, and the Selectee was chosen.
In addition, the Agency noted that S2 clarified that the GS-12 Chemist position was not the
same as a Team Lead position. S2 stated that on October 26, 2011, an electronic mail message
went out to all Center Staff notifying them of the Vacancy Announcement for the GS-12
Chemist position, and provided a link to the USAJobs website. S2 stated that Complainant’s
name was not on the Certificate of Eligibles. S2 noted that only one individual applied for the
Team Lead position and he was selected on March 28, 2013.
The Agency also determined Complainant failed to demonstrate pretext for discrimination.
The Agency noted that Complainant acknowledged that he was aware of the Vacancy
Announcement for the GS-12 Chemist position. The Agency noted that Complainant stated he
did not apply because at the time he realized he may not have the experience level to be
selected for the position. The Agency reiterated that the GS-12 Chemist position that was
announced in 2011, was not related to the announcement of the GS-12 Team Lead positions
which were announced in March 2013.
The Agency argued that in a claim involving a non-selection, a complainant who fails to apply
for the position at issue lacks standing to bring a complaint of discrimination, because he has
not been subject to an adverse action. The Agency noted that an exception to this requirement
is when a complainant can prove that he was discouraged from applying by the Agency or that
the application process was informal and secretive. The Agency noted that while Complainant
claimed he believed the Selectee was encouraged to apply for the position, he never alleged
that he was discouraged from applying for the position. The Agency also stated there was no
evidence the Selectee was encouraged to apply. Further, the Agency stated that the Vacancy
Announcement for the GS-12 Chemist position was placed on USA Jobs, and that the GS-12
Team Lead position was announced by electronic mail to everyone within the Division and was
also announced in a meeting, which Complainant attended.
0120142352
4
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 lawâ€).
In the present case, we find assuming that Complainant established a prima facie case of
discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The record reveals the Agency widely announced both the GS-12 Chemist position and the GS-
12 Team Lead detail to the Prep Team. Moreover, Complainant admits he was aware of both
openings and did not apply to either position. We note that there is no indication that
Complainant was discouraged from applying to either of the positions at issue. While
Complainant states that he realized in March 2013, that if he would have applied for the GS-12
Chemist position and been selected, he would have been eligible for the GS-12 Team Lead
position, we find this is insufficient to establish that the Agency’s actions were based on
discriminatory animus. Moreover, we note that while the record reveals that there was another
detail in March 2013, for a mass spectrometry operator, we note Complainant does not claim
that he was denied the opportunity to apply for that position. Upon review, we find
Complainant failed to establish that he was subjected to discrimination based on his race, sex,
or age.
CONCLUSION
Accordingly, the Agency’s final decision 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:
0120142352
5
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 “departmentâ€
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
0120142352
6
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
June 23, 2016
Date
