Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120122098 (E.E.O.C. Mar. 20, 2014)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120122098

Agency Nos. HS-USCG-00430-2011; HS-USCG-01285-2011

DECISION
On April 11, 2012, Complainant filed an appeal from the Agency’s February 29, 2012, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. and 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.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency. The record reveals that previously Complainant had been
employed with the National Aeronautics and Space Administration (NASA) for over 30 years.
Complainant retired from NASA as a GS-11 Electronics Technician on February 5, 2010.

On December 30, 2010, Complainant filed an EEO complaint (HS-USCG-00430-2011)
alleging that the Agency discriminated against him on the bases of disability (hearing impaired
and depression, emotional issues, anxiety, and low self esteem) and age (57) when:

1. On October 19, 2010, Complainant was notified that he was not selected for the
positions of Electrical Engineering Technician, GS-0802-11, advertised under Job
Announcement No. 10-1695-WE-TC-D; and Electrical Engineering Technician,
GS-0802-11, GS-0802-11, advertised under Job Announcement No. 10-1695-WE-
TC-M-R2.

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Subsequently, on June 10, 2011, Complainant filed a second EEO Complaint (HS-USCG-
01285-2011) alleging that the Agency discriminated against him on the bases of disability
(hearing impaired and depression, emotional issues, anxiety, and low self esteem) and age (58)
when:

2. On April 2, 2011, Complainant learned that he was not referred to the selecting
official for consideration for the position of Electronics Technician, GS-0856-12,
advertised under Job Announcement No. 10-2245-SE-TS-M.

On August 2, 2011, the Agency consolidated Agency Nos. HS-USCG-00430-2011 and HS-
USCG-01285-2011 for joint processing. At the conclusion of the investigation on the
consolidated complaints, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC 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.

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. (November 9, 1999) (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 Construction 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 and nondiscriminatory reasons for its conduct. See U.S.Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 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,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
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3
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy

, EEOC Request No. 05950351 (December 14, 1995).
In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. With regard to issue (1), we note that Complainant applied for two Technical
Engineering Technician positions at the Agency’s Shore Infrastructure Logistics Center (SILC)
(Job Announcement Nos. 10-1695-WE-TC-D and 10-1695-WE-TC-M-R2), located in Kodiak,
Alaska.

Management articulated legitimate, nondiscriminatory reasons for not selecting Complainant
for the Electrical Engineering Technician positions at issue. Specifically, the Human
Resources Specialist (HRS-1) who reviewed Complainant’s application stated that the position
advertised under Job Announcement No. 10-1695-WE-TC-M-R2 required experience in
electrical systems, and the experience Complainant identified on his application was in
electronics; therefore, he was deemed not qualified for the position.1

Regarding Job Announcement No. 10-1695-WE-TC-D, HRS-1 explained that under
Competitive Hiring Procedures, veterans’ preference had to be applied and only the top three
applicants were referred to the selecting official for consideration. HRS-1 stated that
Complainant’s application for Job Announcement No. 10-1695-WE-TC-D was not reviewed by
the selecting official because Complainant was not ranked among the top three qualified
applicants. The Selecting Official (SO-1) confirmed that he did not review Complainant’s
application. SO-1 noted that he chose Selectee 1 because he was the highest qualified by points
and he interviewed well.

In his affidavit, Complainant stated that he provided evidence of his hearing loss when he sent
in his application and accompanying documents. He also claimed that based on his resume and
the fact that his work experience began in 1979, the Agency would be able to calculate his age.
He claimed that he was discriminated against based on his disability because the Agency did
not explain why he was not found qualified. Complainant acknowledged that no one at the
Agency said or did anything to make him believe his age or disability was the basis for them
not selecting him for the positions at issue. In his affidavit, Complainant acknowledged that he
did not have experience in electrical systems.

With regard to issue (2), we note that Complainant applied for an Electronics Technician
position at the Agency’s Command and Control Engineering Center (CCEC), Core Technology
Division, located in Portsmouth, Virginia.

Management articulated legitimate, nondiscriminatory reasons for not selecting Complainant
for the Electronics Technician position at issue. Specifically, a Human Resources Specialist
(HRS-2) stated that under open competitive procedures, only the top three applicants were

1 It is unclear from the record whether the Agency hired anyone for employment with regard to
Job Announcement No. 10-1695-WE-TC-M-R2.
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referred for consideration. He stated that Complainant’s job application was not forwarded to
the selecting official because Complainant was not among the top three most qualified
applicants. The Selecting Official (SO-2) confirmed that he did not review Complainant’s
application. In addition, SO-2 noted that the panel interviewed five people, and they picked
the best person based on merit as well as taking into consideration veterans' preference. SO-2
noted that he had a hiring panel of three people that reviewed resumes and made selections as
to whom to interview. He noted that the individuals interviewed were all asked the same
questions. SO-2 stated that the selection of Selectee 2 was made based on experience,
qualifications, and veterans' preference. He clarified that the qualifications were in regard to
critical skills and specific knowledge for this position.

In his affidavit, Complainant noted that he provided evidence of his hearing loss to the Agency
when he submitted his application. In addition, he claimed that based on the information he
provided during the application process, the Agency could calculate his age. In his affidavit,
Complainant stated, “I believe I was 75% a good match for this position and I was very
qualified.” Complainant stated that no one from the Agency said or did anything that made
him believe my hearing loss condition was the basis for them not selecting him. He also stated
that the no one from the Agency said anything about not hiring him because of his age. In
addition, Complainant stated that no one from the Agency said or did anything to make him
believe his emotional issues were the basis for them not selecting him.

Upon review, we find the Agency articulated legitimate, nondiscriminatory reasons for its
actions. We find Complainant failed to show by a preponderance of evidence that the
Agency’s actions were a pretext for discrimination. Moreover, we find Complainant failed to
show that his qualifications were plainly superior to those of Selectee 1 or Selectee 2.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
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twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 20, 2014