Rolf R.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity CommissionFeb 2, 2018
0120161804 (E.E.O.C. Feb. 2, 2018)

0120161804

02-02-2018

Rolf R.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Rolf R.,1

Complainant,

v.

Jeff B. Sessions,

Attorney General,

Department of Justice

(Bureau of Alcohol, Tobacco, Firearms & Explosives),

Agency.

Appeal No. 0120161804

Agency No. ATF201501380

DECISION

On May 2, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 7, 2016, final decision concerning his equal employment opportunity (EEO) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for a position at the Agency's Alcohol, Tobacco, Firearms & Explosives (ATF) facility in Martinsburg, West Virginia.

On January 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (47) when he was not hired for the Legal Instrument Examiner position for which he applied.

The pertinent record shows that, on September 24, 2014, the ATF posted an announcement number CK1217168AN, soliciting applications for multiple vacancies at its Martinsburg, West Virginia facility for the position of GS-6 Legal Instrument Examiner. The vacancy announcement was open for a 24-hour period.

Complainant applied. His date of birth was included in the papers he submitted. He was employed at the time of the subject application with a private company as a Business System Analyst. Complainant previously worked for the federal government, most recently as a GS-13 Intelligence Research Specialist with the National Drug Intelligence Center's Media and Exploitation Division. He separated from the federal government on June 16, 2012, due to a Reduction in Force.

The Agency determined that he was well qualified. On October 10, 2014, his name was forwarded to the selecting official for consideration, along with the names of 52 other applicants. Five of the 53 candidates were identified as having veterans hiring preference. Complainant did not claim veterans preference.

On October 24, 2014,Complainant was interviewed by a panel of four ATF employees. The panelists did not know Complainant prior to the interview and averred that his age was not a factor in their decision to recommend others for the position.

Complainant was notified on November 18, 2014 that he was not selected. Seven applicants were initially selected. Five of the seven claimed veterans' preference. Two others were extended offers. One declined. Five were selected and ultimately were hired. Their dates of birth were 1968, 1969, 1973, 1974 and 1971. Half of the applicants selected were over age 40.

The selectees were chosen based on their veterans' preference if applicable, overall experience, the quality of their interviews, their knowledge of ATF databases and their familiarity with Branch procedures. Five of the seven who were offered the position were veterans. One was a "Direct Hire" - meaning that he was not placed as a result of this selection process.

The selectees began at GS-6, Step 1.

Complainant believes that that the ATF "targeted" specific applicants already employed as contractors who were known and who already held a security clearance.

He contends that his age was a factor because the "agency would have been required to compensate complainant with a higher starting salary if he were selected."

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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. The Agency reasoned that four of the five selectees for whom data of birth information was available were also over the age of 40. Next, the Agency reasoned that ATF officials provided legitimate, nondiscriminatory reasons for their selection decision and Complainant has not established on this record that those reasons were a pretext for age discrimination. The Agency acknowledged that it "may well have been the case" that the ATF would have been required to pay Complainant at a higher salary and did consider his prior grade level. The Agency also concluded that "even assuming the selection panel did give preference to current contractors, married applicants and those applicants who would begin at a GS-6 salary," this did not prove age discrimination. This appeal followed.

Neither party submitted a brief on appeal.

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 law").

Section 633(a) of the ADEA requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. � 633(a) (all personnel actions affecting federal employees or applicants "shall be made free from any discrimination based on age"). It is not necessary for Complainant to show that age discrimination was the sole determinative factor to prevail in a federal sector complaint. Federal agencies are required to proactively make all actions free of age discrimination.

We will assume for purposes of our analysis that Complainant established a prima facie case of age discrimination. He was qualified and at least one younger person was offered the position.

In this case, however, we find the Agency articulated legitimate, non-discriminatory reasons for its non-selection decision. The Agency stated that it selected the candidates who documented that they were entitled to Veterans Preference, who were known to the selecting officials, who possessed knowledge of the Agency's practices and who already possessed a security clearance.

The record supports the articulated reasons. Each of these reasons, if true, is a legitimate, non-discriminatory reason.

Complainant noted that management provided conflicting statements as to whether an applicant's age was included in the application materials and questioned the date of selections of one of the selectees. He pointed out that two of the selectees shared the same address and were likely related and known to the panel members. Complainant contends that ATF had no intention of hiring him because his previous pay grade would have required the ATF to pay him more.

Even if we assumed that the Agency hired candidates already known to them who were willing to accept the GS-6 level salary, the record does not show that Complainant's age played a role in the decision not to select him for the position at issue.

For these reasons, we find that Complainant did not show by a preponderance of the evidence that the stated reasons were a pretext for unlawful discrimination.

CONCLUSION

Accordingly, we AFFIRM the Agency's Final Decision.

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 tends 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.

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 2, 2018

__________________

Date

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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