Marlin B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Feb 14, 2018

0120170162 (E.E.O.C. Feb. 14, 2018)

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

Marlin B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120170162

Agency No. HS-CIS-24922-2015

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated September 7, 2016, 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 filed on November 3, 2015, Complainant alleged discrimination based on age
(over 40) when on September 8, 2015, the Agency informed him that the Agency did not select
him for a position as Management and Program Analyst (MPA), Quality Assurance (QA), under
Vacancy Announcement CIS-1371387-OFS. After completion of the investigation of the
complaint, Complainant requested a final Agency decision without a hearing. The Agency
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 had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the relevant time, Complainant was employed by the
Agency as a MPA/QA, GS-13 in Lincoln, Nebraska. Complainant indicated that he applied for
the MPA/QA, GS-13/14 position in the Agency’s Field Office Directorate (FOD) at issue and he
was found to be among the best qualified applicants. On July 15, 2015, he received a notice
from Human Resources Operations Center (HROC) that he was not selected for the position.
Complainant also indicated that on August 25, 2015, he learned that a selectee, younger person,
was selected for the positon.

The Agency indicated that they convened two recommending panelists. The panelists indicated
that: they received certificates of eligibles from HROC; they reviewed the applications of those
candidates; and they interviewed only two candidates who met the requirements of the Selective
Placement Factor (SPF), which set forth a knowledge, skill, ability, or special qualification of a
candidate. The SPF for the position at issue required candidates currently to have in-depth
knowledge and experience using the NFTS (National File Tracking System), MS (Microsoft)
VBA (Visual Basic for Applications), MS Access, and SQL (Structured Query Language)
software applications; and in writing highly technical reports and briefs. The Agency
acknowledged that this analysis and reporting mission was a new mission requirement for the
Performance, Quality, and Data Integrity Branch which had been mandated by FOD leadership
to begin immediately. The Agency indicated that the SPF was created by HROC and FOD’s
Resource Management Branch.

The recommending panelists stated that out of the two candidates interviewed, they determined
that the selectee, an Immigration Service Analyst, GS-13, had mastered and used the skills under
the SPF in his previous job. The panelists indicated that Complainant was not interviewed
because he did not meet the SPF requirements. In his resume, Complainant did not address his
knowledge and experience with all of the software applications listed in the SPF. Complainant
acknowledged that he did not have knowledge of the SQL software application and had been
taking a course in MS VBA at the time of his application. Based on the panel’s
recommendation, stated the selecting officer, he selected the selectee for the position. The
selecting officer noted that he was not involved with creating the SPF for the position at issue.
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Complainant indicated that the position at issue should have been re-advertised as an Information
Technology (IT) Specialists and not MPA. However, a HR Specialist indicated that IT had not
been the focus of the position at issue. The HR Specialist stated that FOD wanted someone who
would be able to assume the position and be able immediately to run certain reports requiring
these software applications cited in the SPF.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to
show that his 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 has failed to show that the Agency’s action was
motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision 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.
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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 “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 14, 2018
Date