Vickey S.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Nov 13, 2018

0120171175 (E.E.O.C. Nov. 13, 2018)

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

Vickey S.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171175

Agency No. HS-TSA-25239-2016

DECISION

On February 10, 2017, 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
January 6, 2017, final decision concerning her 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 decision.

ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to discrimination based on age when she was not selected for a
Program Manager position.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for the Agency as a
Training Specialist, SV-0301-H, at Baltimore Washington International Airport in Maryland.

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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Complainant was born in 1967. In September 2015, Complainant timely applied for a Program
Manager, SV-0340-H/I, position, advertised under vacancy announcement number HQ-OHC-15-
930447.

On October 16, 2015, Complainant had a first-round interview for the Program Manager position
with an Operations Research Analyst (year of birth: 1958) and a Program Analyst (year of birth:
1971). According to the record, these interviewers conducted four first-round interviews and
forwarded the top three candidates for consideration by the selecting official, a Branch Manager
(SO) (year of birth: 1966).

On October 29, 2015, Complainant had a second-round interview for the Program Manager
position with SO. According to Complainant, she thought the interview went very well.
Complainant averred that during the interview SO told her that he was impressed that she had a
good understanding of the position because the two other candidates he had interviewed did not
have a good understanding of the job responsibilities.

On November 10, 2015, Complainant received an email from SO notifying her that she was not
selected for the Program Manager position and stating that she could contact him if she had any
questions. On November 10, 2015, Complainant called SO and left him a message. SO called
Complainant back later that afternoon. Complainant alleged that she asked why the selectee was
chosen over her and that SO said, “We have a lot of knowledge in this department so I went with
YOUTH, I was looking for a….fit…what word am I looking for…diversity.” Report of
Investigation (ROI) at 152-53. SO denied making this statement.

SO averred that Complainant was his second choice candidate. SO stated that he selected the
selectee, who was 31 years old at the time of her selection, over Complainant because the selectee
showed a willingness to learn and embraced the team concept. According to SO, Complainant was
somewhat aggressive during her interview and seemed more self-centered than team-focused. The
record contains SO’s handwritten interview notes. As a general impression of Complainant’s
interview, SO wrote, “Aggressive/go getter, seems to be more centered on self.” ROI at 311.

On February 24, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of age (year of birth: 1967) when, on November 10, 2015,
she learned that she was not selected for the Program Manager position because management
“went with youth.”

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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 her to discrimination as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that she established that she was subjected to discrimination
based on age because of SO’s comment. Complainant attaches her handwritten notes from her
November 10, 2015, call with SO.2 Complainant alleges that SO may have doctored his notes from
her interview after the fact to support his EEO testimony.

In response to Complainant’s appeal, the Agency contends that Complainant failed to establish
that the legitimate, nondiscriminatory reason for her nonselection was pretextual. According to the
Agency, Complainant has no corroborating evidence to support her allegation that SO made a
remark about youth. The Agency requests that its final decision be affirmed.

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”).

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). She must generally establish a prima facie case by demonstrating that she 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). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate,
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). In a selection case, a complainant can
attempt to prove pretext by showing that her qualifications are “plainly superior” to those of the
selectee. See Patterson v. Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996).

2 As a general rule, no new evidence will be considered on appeal absent an affirmative showing
that the evidence was not reasonably available prior to or during the investigation or during the
hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015).
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Here, the Agency’s legitimate, nondiscriminatory reasons for selecting the selectee over
Complainant are that Complainant gave the impression that she was aggressive and somewhat self-
centered, whereas the selectee appeared to be a better fit because she was more of a team player.
As evidence of pretext, Complainant alleges that SO told her over the phone that he selected the
selectee because of her relative youth. However, SO denied making such a comment, and the
preponderance of the evidence in the record does not establish that SO actually made this comment.
Complainant has not otherwise established pretext for discrimination, so she has failed to establish
that she was subjected to discrimination based on age.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance
of the evidence in the record does not establish that discrimination occurred.

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.
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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

November 13, 2018
Date