U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rayford H.,1
Complainant,
v.
Michael R. Pompeo,
Secretary,
Department of State,
Agency.
Appeal No. 0120181518
Hearing No. 570-2016-00510X
Agency No. DOS027115
DECISION
Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final
order finding no discrimination.
BACKGROUND
Complainant is a United States citizen holding an Overseas Citizen of India (OCI) card, which
allows him to work and reside in India. On April 8, 2015, the U.S. Embassy New Delhi received
an application from Complainant for Vacancy Announcement 15-019, Commercial Specialist,
FSN-1510-10. This vacancy announcement informed applicants there were two positions to be
filled from the announcement for the U.S. Embassy New Delhi. The positions were under the
Department of Commerce, Foreign Commercial Service (FCS), International Trade
Administration (ITA).
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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For overseas FCS positions, the Agency (Department of State) Human Resources (HR)
personnel posts vacancies, compiles qualified applicant materials, and screens the applications to
determine whether minimum qualifications are met on behalf of the Department of Commerce.
The Agency forwards the names of the qualified applicants to the Department of Commerce, as
the selecting agency. Complainant’s name was among those qualified applicants forward to the
selecting agency.
The Department of Commerce, as the selecting agency, retains discretion on which individuals to
select for their positions. Department of Commerce selecting officials did not select Complainant
for an interview. Of the 17 applicants selected for an interview, three were over the age of 40 at
the time of the interviews.
On May 13, 2015, Complainant contacted the U.S. Embassy in New Delhi via e-mail and by
telephone to inquire on the status of his application for Vacancy Announcement Number 15-019.
The Agency’s HR staff advised Complainant that he qualified for the positions but was not
selected to interview. Complainant advised HR staff of his status as a U.S. veteran. On May 14
and 15, 2015, Agency HR staff reviewed Complainant’s application materials and determined
that Complainant should have been offered an interview under the Embassy’s veterans’
preference policy. On May 13 and 16, 2015, Complainant emailed the Agency’s Office of Civil
Rights to discuss filing an EEO complaint.
On May 18, 2015, Agency HR staff advised the selecting officials with the Department of
Commerce that Complainant should have been given the opportunity for an interview and the
hiring process should be stopped until Complainant was offered an interview. That same day,
Complainant was contacted and offered an interview that week. Complainant responded by email
to the Agency HR office stating that he did not wish to have an interview but instead wished to
meet with someone regarding his EEO complaint.
On May 20, 2015, Complainant met with two HR personnel for the Agency at the U.S. Embassy
in New Delhi. During that meeting, Complainant agreed to come for an interview for the
Commercial Specialist positions on May 22, 2015. Complainant failed to appear for his
scheduled interview on May 22, 2015, at 2:00 PM. Complainant did not contact the U.S.
Department of Commerce or the Agency to reschedule, cancel, or advise of his whereabouts.
Complainant never followed-up to reschedule an interview for the positions at issue in this
complaint.
On June 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (55) and reprisal for prior protected EEO activity under the Age
Discrimination in Employment Act of 1967 when on May 12, 2015, Complainant learned he was
not selected for the two Commercial Specialist positions (FSN-1510-10) at the U.S. Embassy in
New Delhi, India, posted under Vacancy Announcement Number 15-019.
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Based on his belief that two different agencies were involved in the hiring process, Complainant
also filed the same formal complaint against the U.S. Department of Commerce on July 31,
2015.
The Agencies separately investigated Complainant’s allegations and each issued a Report of
Investigation (“ROI”). At the conclusion of the investigation, both Agencies provided
Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing for both complaints. The AJ issued a Notice of Joint Processing concerning
Complainant’s complaint against both Agencies. Over Complainant's objections, the AJ assigned
to the case granted the Agency’s April 19, 2017, motion for a decision without a hearing and
issued a decision without a hearing on January 25, 2018. When the Agency failed to issue a final
order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged became
the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant
appeal. Complainant also appealed his complaint against the U.S. Department of Commerce. See
EEOC Appeal No. 0120181519.
ANALYSIS AND FINDINGS
We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
disputed the AJ’s finding and argued that the evidence showed Complainant’s age was used as
screening tool and eliminated him from the candidates to be interviewed. Ultimately, the AJ
correctly determined that there are no genuine issues of material fact or credibility that merited a
hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate.
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In the instant case, the AJ found that Complainant failed to establish that he was subjected to
discrimination. Generally, claims of disparate treatment are examined under the analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). In a disparate treatment case, a prima
facie case of discrimination based on sex many be done by Complainant's showing that he is in a
protected class, and was treated less favorably than other, similarly situated employees outside
his protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir.
1975). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason
for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
We find that assuming, arguendo, Complainant could establish a prima facie case of
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Complainant failed to establish by a preponderance of the evidence that the Agency’s
reasons were a pretext for unlawful discrimination. A mistake regarding the application of
veterans’ preference to his application does not by itself show that there was any discrimination
and does not give rise to an inference of discrimination. The Agency explained that when the
mistake was identified, the hiring process was stopped, and Complainant was offered the
opportunity to participate in the interview process. Complainant agreed to an interview at a
certain date and time but then failed to attend the interview. Complainant failed to provide any
evidence that the mistake in applying veterans’ preference was a pretext for discrimination based
on age or reprisal. Additionally, Complainant has failed to establish that similarly situated
persons were treated differently. Complainant argues the mere fact that the two individuals
selected were younger than him is evidence of discrimination is misguided. The record shows
three of the 17 individuals selected for an interview were over 40, and those individuals were
selected prior to Complainant inquiring about filing an EEO complaint. We find Complainant
has failed to establish by a preponderance of the evidence that the Agency discriminated against
him based on age or reprisal in failing to interview or select him for the Commercial Specialist
positions.
CONCLUSION
Accordingly, this Commission AFFIRMS the Agency’s final order finding no discrimination.
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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.
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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
July 17, 2019
Date
