Odis H.,1 Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120150125 (E.E.O.C. Nov. 4, 2016)

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

Odis H.,1
Complainant,

v.

Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120150125

Hearing No. 410-2013-00396X

Agency No. HHS-CDC-0411-2012

DECISION

Complainant filed an appeal from the Agency’s September 5, 2014, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621
et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Medical Officer at the Agency’s work facility in Atlanta.

On November 19, 2012, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the bases of his age (60) and in reprisal for his prior
protected EEO activity under Title VII when:

1. On July 2, 2012, Complainant learned that he would not be placed in a permanent
civil service position following the completion of his current term position, despite

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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having been informed in writing on two separate occasions that the transition would
occur;

2. On October 29, 2012, Complainant learned that he was referred, but not selected
for the position of Medical Officer, GS-602-15, (CGH, FETP Branch Chief), under
Vacancy Announcement Number HHS-CDC-DE-12-717936;

3. On September 10, 2012, after being verbally offered the position of Health Attache,
GS-0301-15 (Office of Global Affairs, South Africa), under Vacancy
Announcement Number HHS-OS-DE-681660, Complainant learned that he would
not receive physician market pay causing the certificate to be cancelled and re-
announced; and

4. On August 25, 2012 and continuing, Complainant requested, but was denied, the
opportunity for the assignment of additional work.

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). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged.2 The Agency noted that Complainant was employed as its Thailand Consolidated
Country Director, Supervisory Medical Officer, GS-0603-15, from August 20, 2006 until
August 14, 2012, before commencing work with the Agency in Atlanta. Prior to filing the
instant complaint, Complainant’s EEO history consisted of the filing of two informal
complaints. In April 2005, Complainant filed an informal complaint claiming race
discrimination when he was not selected for a position. Complainant withdrew the complaint a
month later. Complainant also filed an informal complaint claiming reprisal concerning a pay
increase matter. That complaint was resolved via a settlement agreement on October 31, 2006.

The record reflects that Complainant was among eight candidates for the Medical Officer
position selected for an interview. Complainant maintained that he was more qualified for the
position than the selectee. In support of his position, Complainant stated that for four years he
served as the Resident Advisor and developer of an epidemiology program in Taiwan, that he
received the highest civilian award offered by the government of Taiwan, and that he received
multiple Public Health Service Commissioned Corps decorations. Complainant stated that he
received a Master’s Degree in Public Administration from the Harvard Kennedy School of
Government and that during his six-year tenure as a Thailand Consolidated Country Director,

2 On appeal, Complainant only challenges the Agency’s determination of no reprisal as to
claim (2). Therefore, we shall only address the basis and claim raised on appeal within this
decision.
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he supervised the regional Resident Advisor to the Field of Epidemiology Training Program in
Southeast Asia. Further, Complainant stated that he managed an office of 200 people and
seven programs with a budget of $20 million, and received an “Exceptional” performance
rating for each of the past six years.

The interview panel consisted of the selecting official (the Division Director), the Deputy
Director 1 (Division of Public Health and Work Force Development), and Deputy Director 2
(Science and Programs). The selecting official stated that he was seeking a senior level
Epidemiologist or Medical Officer to be the Field of Epidemiology Training Program Branch
Chief, which required good management skills, good administrative skills, the ability to work
with others and be a team player, and preferably someone who had a background in the Field
of Epidemiology Training Program or a comparable training program. According to the
selecting official, the selectee was chosen based on her ideas about how to move the program
forward and how to make strategic partnerships. The selecting official asserted that neither the
selectee nor Complainant had extensive international experience or experience directly related
to the Field of Epidemiology Training Program, although both were familiar with the program.

Deputy Director 1 stated that Complainant made it through the second interview but he did not
believe Complainant was the best fit for the position. The Agency noted that Deputy Director
1 remarked that the selectee was impressive based on her global experience as she had worked
with ministers of health in difficult environments and difficult nations Deputy Director 1
mentioned that the selectee worked in an area with polio. According to Deputy Director 1,
Complainant also had global experience, but not at the level of the selectee.

Deputy Director 2 stated that he recommended a candidate other than Complainant or the
selectee. Deputy Director 2 commented that he was “put off” by some of Complainant’s
interview responses. Deputy Director 2 explained that he was concerned that Complainant
might cause problems by trying to tell people in other branches what to do and how to do it.
According to Deputy Director 2, the selectee impressed him with her ideas on how to get
things done, how to elicit cooperation from other divisions and how to strengthen the program.
Deputy Director 2 emphasized that the ability to work with other groups was an important
factor in his evaluation. The Agency stated that all of the officials involved in the selection
process stated they were unaware of Complainant’s prior EEO activity. The Agency
determined that it articulated legitimate, nondiscriminatory reasons for its selection.

Complainant challenged the selectee’s qualifications for the position. Complainant stated that
he joined the Agency fourteen years before the selectee and that the selectee lacked equivalent
management experience. Complainant claimed that the selectee was less qualified because she
had spent most of her career in Polio (Immunizations Program) and had some experience in
malaria. Additionally, Complainant questioned the quality of the selectee’s list of publications.
Complainant noted that there were not any first-authored publications nor any publications
concerning outbreak investigations related to the field epidemiology training programs. The
Agency determined that Complainant did not present any evidence that his qualifications were
so plainly superior to those of the selectee that Complainant’s nonselection must have been due
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to retaliatory motivation rather than the reasons it articulated. The Agency determined that
Complainant failed to establish pretext.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the statements of the selecting official and Deputy
Director 1 that they were unaware of Complainant’s prior EEO activity were a fabrication.
Complainant points to Deputy Director 2’s statement that there was a discussion of
Complainant’s prior EEO complaint after he was interviewed, when the selecting official and
Deputy Director 1 informed Deputy Director 2 of Complainant’s prior EEO activity.
According to Complainant, Deputy Director 2 stated that the selecting official and Deputy
Director 1 remarked that he had caused some trouble before. Complainant maintains that his
prior EEO activity was the actual reason that he was not considered compatible or the right fit
for the position. Complainant argues that the discussion about his prior EEO activity
constitutes direct evidence of bias against him. Complainant notes that his nonselection
occurred on October 29, 2012, less than three months after he initiated contact with an EEO
Counselor with regard to other claims in the instant complaint. Complainant recites many of
his aforementioned credentials and reiterates what he considers to be the selectee’s
deficiencies.

In response, the Agency asserts that the Deputy Director 2 stated that he thought
Complainant’s prior EEO activity was discussed after Complainant’s interview and that it was
mentioned that Complainant had launched a complaint in the past or in some way caused
trouble before, but he did not recall specifically that it was an EEO complaint. The Agency
notes that Deputy Director 2 stated that he did not support Complainant for the position based
on his poor interview. The Agency states that the selecting official and Deputy Director 1
denied that Complainant’s prior EEO activity was a factor in the selection decision. The
Agency maintains that conflicting evidence as to whether the selecting official and Deputy
Director 1 were aware of the prior EEO activity is not direct evidence that Complainant’s prior
EEO activity was a reason for his nonselection. The Agency further argues that it is possible
that Deputy Director 2 interpreted the investigator’s questions differently than the selecting
official and Deputy Director 1 in assuming their reference to a complaint or trouble was about
EEO activity, when it may have been about some other conflict.

The Agency challenges whether Complainant has set forth a prima facie case of reprisal. The
Agency argues that Complainant’s reprisal claim lacks temporal proximity. In support of its
position, the Agency states that Complainant is arguing that the prior EEO activity that
precipitated his nonselection occurred in 2006. The Agency maintains that the six year gap
between this prior EEO activity and the instant nonselection does not meet the requirement of
temporal proximity. With regard to Complainant’s argument that temporal proximity was also
satisfied by his initiation of the instant complaint in August 2012, the Agency asserts that there
is no reason to believe that the officials involved in interviewing candidates would have been
aware of an EEO complaint that was still in the counseling stages.

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The Agency maintains that it had legitimate reasons for not selecting Complainant. The
Agency acknowledges that Complainant was qualified for the position but states what
differentiated the selectee from the other applicants was her interview. The selecting official
stated that the selectee had better ideas about how to move the program forward, how to make
some strategic partnerships in the future, and generally had better ideas about the future of the
program that he believed were compatible with the direction in which he wanted the program
to go. Deputy Director 1 stated that the selectee’s international experience was more relevant
than that of Complainant. Deputy Director 2 stated that it became obvious to the panel that the
selectee had some very good ideas on how to get things done and how to obtain cooperation
from other divisions and how to strengthen the program. Deputy Director 2 noted that
although Complainant said some very good things, he also sounded as though he wanted to
interfere with what the other branches were doing. Deputy Director 2 indicated that
Complainant got off the mark during the interview and that he was concerned about his ability
to work with other groups.

With respect to Complainant’s reliance on his length of service and record of scientific
publications compared to those of the selectee, the Agency asserts that number of years of
experience did not render Complainant an observably superior candidate, and that the vacancy
announcement did not indicate that a record of scientific publications would be a factor in the
selection.

ANALYSIS AND FINDINGS

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). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a
nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where 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).
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Assuming that Complainant established a prima facie case, we find that the Agency articulated
several reasons for the choice of the selectee rather than Complainant. The selectee’s
interview was by consensus considered better than Complainant’s interview. According to the
selecting official, the selectee had good ideas about how to move the program forward and how
to achieve strategic partnerships. Deputy Director 1 believed the selectee’s international
experience was more relevant than that of Complainant. Although the selectee was not Deputy
Director 2’s first choice, he stated that she had very good ideas as to how to get things done
and how to obtain cooperation from other divisions. Moreover, Deputy Director 2 stated that
he was concerned based on Complainant’s interview remarks about his ability to work with
other groups. We find that the Agency has articulated legitimate, nondiscriminatory reasons
for its selection.

Complainant attempts to establish pretext by pointing out that Deputy Director 2 stated that
shortly after his interview concluded, it was mentioned that he had filed a complaint in the
past. According to Deputy Director 2, he mentioned that Complainant had said some things
that sort of put him off, and the selecting official and Deputy Director 1 responded by saying
Complainant had caused some trouble before. We find the reference to some trouble is
insufficient to establish that Complainant’s prior EEO activity was a consideration in his
nonselection.’

Complainant also attempts to establish pretext by focusing on what he considers to be his
superior qualifications for the position. Complainant may be able to establish pretext with a
showing that his qualifications were plainly superior to those of the selectee. Wasser v.
Department of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647. F.2d 1037, 1048 (10th Cir. 1981). The legitimate factor that clearly favored the selectee
was the quality of her interview in comparison with Complainant. It is clear that important
components of this supervisory position involved communication skills and being able to
effectively work with others and be a team player. The selectee presented herself during her
interview as someone who could strengthen the program in part by forming strategic
partnerships. Complainant in contrast came across during his interview as someone who
wanted to interfere with what the other branches were doing. Deputy Director 2 explained that
he was concerned that Complainant might cause problems by trying to tell people in other
branches what to do and how to do it. The selectee also distinguished herself during the
interview by proposing ideas that coincided with the direction that the selection official wished
the program to proceed. We find that Complainant has not established that his qualifications
for the position at issue were clearly superior to those of the selectee.

CONCLUSION

We find that the Agency’s determination that no reprisal discrimination occurred with regard to
claim (2) was proper and is AFFIRMED.

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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
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”
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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

November 4, 2016
Date