Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.Download PDFEqual Employment Opportunity CommissionMar 6, 20140120131269 (E.E.O.C. Mar. 6, 2014) Copy Citation 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 2 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 3 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. 0120131269 4 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 Copy with citationCopy as parenthetical citation