Shayne K.,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120172422 (E.E.O.C. Nov. 6, 2018)

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

Shayne K.,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 0120172422

Hearing No. 450-2017-00096X

Agency No. 1626

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 12, 2017
final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for a position
as a Public Affairs Specialist, GS-11, at the Agency’s George W. Bush Presidential Library and
Museum facility in Dallas, Texas.

On or about November 9, 2015, Complainant applied for a Public Affairs Specialist position,
1035, GS-11, via USAJobs, advertised under job announcement number JD1537667ATM. He
was certified as qualified and forwarded to the selecting official for consideration.

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.
0120172422

2
In December 2015, the Agency contacted Complainant to schedule an interview for the position
with the selecting official. The selecting official interviewed Complainant but ultimately selected
another candidate, a white female.

On April 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), and age when, on January 27,
2016, he learned that he was not selected for the public affairs specialist position.

Complainant alleged that, although he was given the opportunity to interview with the selecting
official, he was not given appropriate consideration. Complainant also alleged the selection was
not made on the basis of merit and the selecting official did not ensure a fair and open
competition. During the interview, the selecting official initially asked questions that were
generally posed for a public affairs specialist but the questions shifted to marketing or
administrative officer duties. Marketing and budgeting experience were not advertised as a job-
related duty or responsibility in the vacancy announcement but the selecting official penalized
Complainant for not having experience in this area and made this a key factor in selection. The
selecting official only contacted references of the top three (3) candidates, which did not include
Complainant. Complainant had stellar credentials, was a veteran, and was reinstatement eligible
without competition. The selecting official refused to score resumes or interview responses in a
thorough, systematic manner as a pretext for discrimination. The selectee (white female) was not
a veteran and, while she has an MBA and marketing and budgeting experience, this type of
knowledge and experience is not related to the duties or responsibilities of the job.

The selecting official indicated that all candidates were asked the same questions. The Agency
was looking for skills in marketing, press relations, and budgeting. The vacancy announcement
specifically references marketing experience. Complainant was not among the top 3 candidates
for the position. The selectee was impressive in her work in marketing under challenging
circumstances while in the military and at the Department of Veterans Affairs (VA). She also
had the requisite experience working with the press and social media.

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 decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

The instant appeal followed.

0120172422

3
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”).

Complainant alleged that the Agency treated him disparately in the hiring process. Generally,
such claims of disparate treatment are examined under the three-part analysis established in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

For a complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (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.

A complainant establishes a prima facie case of age discrimination by showing that (1) he is a
member of a protected group; (2) he was qualified for the position; (3) he was not selected for
the position; and (4) the agency chose a substantially younger applicant for the position. See
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice
No. 915.002 (Sept 18, 1996); Williams v. Dept. of Educ., EEOC Request No. 05970561 (Aug. 6,
1998).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the agency's
reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the
burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Cr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716(1983).

Here, if we assume Complainant has established a prima facie case with respect to his claim, his
claim nevertheless fails, as the record establishes the Agency had legitimate and
nondiscriminatory reasons for its action.
0120172422

4
Although Complainant was qualified for the position, he lacked the marketing and budgeting
experience the selecting official indicated was desired for the job. The selectee was also qualified
and had the marketing and budgeting experience Complainant lacked. Complainant was not
among the top three candidates and, therefore, did not advance to the final interview stage of the
hiring process. In the absence of evidence of a discriminatory motivation, the Agency generally
has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. at 259. In addition, the Agency has the discretion to choose among applicants
who have different but equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d
1057, 1061 (6th Cir. 1981). Complainant has not produced sufficient evidence to dispute the
selectee’s qualifications or establish that he has superior qualifications. See Ash v. Tyson Foods,
Inc., 546 U.S. 454 (2006). Therefore, we find that Complainant has not established that the
Agency’s proffered reasons were pretext for discrimination.

On appeal, Complainant alleges that budgeting experience was not relevant to the position and
that the consideration of such was a pretext to select the selectee, a white woman with such
experience. He further maintains the selectee was not a veteran, whereas he is. However, we do
not find evidentiary support for Complainant’s contention that consideration of budgeting
experience was a pretext for discrimination. The weight of the evidence shows the selecting
official chose the selectee, considering for non-discriminatory reasons her experience in
marketing, press, and budgeting, including that acquired in the military and at the VA. The
record establishes the selectee’s military experience.

With respect to Complainant’s appellate allegations of dissatisfaction regarding the Agency’s
processing of his complaint, we find that, even though the Report of Investigation and issuance
of the final order were untimely,2 these delays did not materially affect the processing of the
complaint or the outcome. See EEOC -- Management Directive 110 (as revised Aug. 5, 2015)
Chap. 5 Section IV. D.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed in this decision, we AFFIRM the Agency’s final order.

2 The Report of Investigation was issued about a month and a half beyond the 180-day deadline,
and the final decision was issued about two days late.
0120172422

5
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.
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.
0120172422

6
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 6, 2018
Date