Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Mar 6, 2014

0120131269 (E.E.O.C. Mar. 6, 2014)

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

,
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.

Appeal No. 0120131269

Agency No. FWS-12-0040

DECISION
On February 13, 2013, Complainant filed an appeal from the Agency’s January 14, 2013, final
decision 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. 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 the
position of Facility Operations Specialist, GS-1640-11, with the Agency’s Fish and Wildlife
Service (FWS), located in Albuquerque, New Mexico.

On November 30, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Caucasian), national origin (Mexican) and age
(56) when:

On October 12, 2011, Complainant was notified that he was not rated “Best Qualified”
and his name was not referred to the Selecting Official for the position of Facility
Operations Specialist, GS-1640-11, Vacancy Announcement Number R2-11-543355-
MS-DEU.

The Agency accepted Complainant’s complaint for processing and conducted a full
investigation. On January 14, 2012, the Agency issued a final decision concluding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

0120131269

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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”).
Complainant claimed that he was qualified for the position of Facility Operations Specialist;
however, he stated that he was not interviewed. Complainant noted that all applicants were
instructed to rate themselves and answer all the questions on the application. Complainant
stated he rated himself at 94% and submitted his application. Complainant believed he had
more education and background experience than any of the other applicants. Complainant
further stated that he was a veteran and had a 5% veteran's preference for his service.
Complainant learned that his application was not submitted to the Selecting Official because he
did not make the Best Qualified List (BQL). The Agency informed Complainant that his
application was not forwarded to the Selecting Official because only the applicants that rated
themselves with a 95% or higher were placed on the BQL. Complainant believed this method
was flawed and allowed for liars to make it to the BQL without the proper experience needed
for the job. Complainant claimed a comment was made to him that the Agency may be
“looking for a younger candidate.” Complainant stated he cannot recall who made this
comment as there were many people he spoke with over the eight months he communicated
with the Agency regarding his non-selection.

The Supervisory Human Resources Specialist explained that applicants were not scored by the
Agency during the interview process. Rather, she noted that they scored themselves by
answering questions on the questionnaire. She noted that Complainant scored himself at 94%.
The Agency explained that only those applicants that rated themselves with a 95% or higher
were placed on the BQL. The Supervisory Human Resources Specialist stated that only those
applicants on the BQL were referred to the Selecting Official.

The Supervisory Human Resources Specialist confirmed that Complainant claimed a five-point
veteran’s preference. The Supervisory Human Resources Specialist noted that preference
points were no longer added to the scores of veterans. Rather, she stated that those claiming
veteran’s preference of five points were placed at the top of the category under which they fell
on their self-assessment. She explained that those claiming 10-point preference were placed at
the top of the BQL regardless of their score on the self-assessment. The Supervisory Human
Resources Specialist stated once Complainant contacted Human Resources to complain about
his non-selection, she then reviewed his application to ensure he did not claim a 10-point
0120131269

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veteran’s preference. She stated that after review of his application and DD-214, she
determined that Complainant was a veteran with a 5-point preference, which placed him at the
top of the category on which he scored, the Well Qualified List. She stated that no one from
the Well Qualified List was referred to the hiring official. The Selecting Official confirmed
that he never reviewed Complainant’s application since Complainant did not make the BQL.

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for not
selecting Complainant, he was not on the BQL that was forwarded to the Selecting Official
since only those applicants that rated 95% or higher made the BQL. With regard to
Complainant’s contention that someone from the Agency made a comment that the Agency
may be “looking for a younger candidate,” we note Complainant does not identify who made
the alleged comment or when it was allegedly made. Moreover, there is no indication that this
comment was made by an individual involved in the hiring process for this position. Upon
review, we find Complainant failed to show by a preponderance of evidence that he was
subjected to discrimination based on his race, national origin or age.

CONCLUSION
Accordingly, the Agency’s final decision 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
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.
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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

(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
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 6, 2014