Ralph B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120172357 (E.E.O.C. Nov. 14, 2018)

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

Ralph B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120172357

Agency No. DOS-0055-17

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 20, 2017, 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

At the time of events giving rise to this complaint, Complainant worked as a Contractor Passport
Support Associate, PS-1, at the Agency’s Charleston Passport Center in Charleston, South
Carolina. On December 22, 2016, Complainant filed his complaint alleging discrimination based
on age (over 40) when in November 2016, he was not selected for a Passport Specialist, GS-
0999-05/07 position.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then 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 time of events giving rise to the complaint,
Complainant was a contractor for Allied Government Solutions working as a Passport Support
Associate at the Charleston Passport Center. In March 2016, Complainant applied for the
Agency’s Passport Specialist position at issue by placing his resume in the centrally located box
in the front office of the Passport Center.

The Agency indicated that a team of nine Adjudication Managers reviewed applicants’ resumes
and interviewed them. Approximately 60 applicants, including Complainant, applied for the
position. The Adjudication Managers team interviewed all applicants, including Complainant,
utilizing a list of eight standard questions related to the position. They scored each applicant 1
through 10. Complainant was interviewed on March 29, 2016, by two Adjudication Managers.
An identified Adjudication Manager indicated she interviewed Complainant and gave him a
score of 6 because his responses were vague and provided minimal details. Complainant points
out that the Agency failed to produce his interview notes. Complainant, however,
acknowledging his interview was very short consisting of general questions, does not indicate
that his interview responses were not vague with minimal details and he should have received a
higher score.

The Adjudication Managers team completed the interviews by the end of March 2016, and
referred 17 applicants who received the score of 8 or higher to Human Resources (HR).2 There
was at least one candidate, a few years older than Complainant, who received the score of 8, and
thus was referred to HR. There were 34 candidates who received higher scores than
Complainant. HR determined that 11 candidates, out of those 17, qualified under the certificate
requirements and were offered a position.

2 A few documents in the record indicate that the Adjudication Managers team referred 16, and
not 17, applicants to the HR.
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The position announcement provided that the Agency was hiring preference eligible (Veteran)
candidates. Therein, applicants were required to submit application documents: a resume, DD-
214 form (Certificate of Release or Discharge from Active Duty) or documentation from military
with dates of service (if not yet discharged), VA letter (if applicable), SF-15 (if applicable), and
academic transcripts (if applicable). Complainant did not submit his DD-214 form until August
16, 2016, well after all selections had been made. Complainant does not dispute this. In his
August 16, 2016 email to the Agency, Complainant asked the Agency if he could include his
DD-214 form in his application packet and if not, whether he could “reapply with the records.”
The Agency indicated that Complainant would not have been qualified by HR for the position
even if he was referred to HR by the Adjudication Managers after his interview due to a missing
DD-214 form.

Complainant indicated that to his knowledge, only three contractors, he and two others (C1 and
C2), who were younger than he, received interviews for the position. C1 and C2 were selected
for the position in mid-summer of 2016, but he was not. Complainant stated that C2 was only a
high school graduate (currently a college student), four years in the military, and one year full-
time work experience. Complainant indicated that he was more qualified than C2 because
Complainant was a college graduate, six years in the military, and over 20-years full-time work
experience. However, C1 and C2 received the interview score of 9 and 8.5, respectively, and
they clearly included their DD-214 form in their application packet. Complainant failed to show
that there were any candidates who were referred to the HR with a missing DD-214 form and
were selected.

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. Complainant was not qualified
because of the lack of DD-214 form and scored poorly on the interview. 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 of 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.
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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.
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.
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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 14, 2018
Date