0120090176
07-08-2010
Gary H. Patzlaff, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Gary H. Patzlaff,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120090176
Agency No. CRC0801032
DECISION
Complainant filed an appeal from the Agency's September 12, 2008, final
decision (Ag Decision) 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Industrial Hygienist, GS-12, in the Occupational Safety and
Health Administration (OSHA), in Augusta, Maine. Complainant filed
an EEO complaint, dated December 27, 2007, alleging that the Agency
discriminated against him on the basis of age (67) when:
On October 5, 2007, Complainant was not selected for the GS-0018-13,
Compliance Assistance Specialist (CAS) position, advertised under Vacancy
Announcement No. BOS-MS-07-132A.
At the conclusion of the investigation, 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).
In its decision, the Agency found that Complainant established a prima
facie case of age discrimination in that he was 67 years old at the time
of the selection. Complainant applied for the subject position and was
not selected. The Selectee, (SE) the Agency noted, was 41 years of age.
Ag Decision at 7. The Agency observed that following interviews of
six candidates for the position by a three-member panel, SE and another
candidate, E2, were ranked numbers 1 and 2, while Complainant was ranked
lower among the interviewed candidates. Id. at 7-8. The Agency found
that the Selecting Official, (S1), Area Director, Augusta Area Office,
noted that SE possessed greater knowledge and experience, particularly
with cooperative programs than Complainant and also possessed greater,
practical presentation and communication skills. Id.
The Agency found that Complainant had not shown that S1's reasons
for selecting SE were a pretext to mask discrimination. Specifically,
Complainant argued that he contacted E2, the candidate ranked ahead of SE.
E2, Complainant discovered, had not been offered the position. E2 was
fifty years old. Complainant stated that somehow S1 knew that E2 would
only accept the position if the Agency paid for her relocation expenses.
The Agency found that Complainant did not present persuasive evidence
of pretext, nor that age played any role in the Agency's decision to
select SE. Id. at 8.
Further, the Agency reasoned that in comparing Complainant's
qualifications to those possessed by SE, Complainant's qualifications
were not demonstrably superior. Rather, the Agency found that SE had
a wider range of experience with agency cooperative programs and that
SE had received an "Exceeds" rating, whereas Complainant's most recent
performance evaluation was at the "Meets" expectations level. Id.
Accordingly, the Agency concluded that Complainant had not shown that
discrimination occurred as alleged in the selection of SE for the position
of Compliance Assistance Specialist.
CONTENTIONS ON APPEAL
On appeal, Complainant states that S1's reasoning discounts Complainant's
teaching experience, while acknowledging SE's teaching experience.
Complainant also states that he has not had the same opportunities for
working with cooperative programs that SE has had. Further, Complainant
disputes that he ever cursed during the interview process as claimed
by a panel member and S1. Moreover, Complainant states that he is at
least as qualified as SE. Complainant's November 7, 2008, Letter Brief
on Appeal, at (unnumbered) page 2.
On appeal, the Agency states again that S1 noted Complainant's teaching
experience was some time ago, mostly in academia, to high school and
college students, and that SE had far greater knowledge and experience
with cooperative programs central to the job duties of the CAS.
Agency's December 17, 2008 Statement on Appeal, at 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").
In the instant case, we find the record supports the Agency's Final
Decision. In nonselection cases, pretext may be found where complainant's
qualifications are demonstrably superior to the selectee's. Bauer
v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). Here, the Commission
finds that complainant has not made this showing. Specifically, we note,
as did the Agency, the evidence supports S1's determination that SE
possessed greater experience with cooperative programs as well as SE's
"exceeds" expectations performance evaluation. Reports of Investigation
(ROI) Exhibit (Ex.) F2-D, at 1. We find no dispute that Complainant was
qualified for the position, nor that Complainant's qualifications included
substantial past teaching experience (through 1998). We consider
that both S1 and the statements of another panel member indicated that
Complainant's interview was less impressive than E2's or SE's interview
based on the substance of the answers to interview questions posed
by the panel members as well as Complainant's demeanor noted by S1
and other panel members. Witness Affidavit, May 12, 2008, Report of
Investigation (ROI), Exhibit (Ex.) F3, at 3; Interrogatories for S1,
May 16, 2008, ROI Ex. F2 at 3. Accordingly, we are not persuaded
that Complainant has shown the Agency's reasons for its actions were
a pretext nor that discrimination was the real reason that SE was
selected.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency's Final Decision, finding no discrimination.
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.
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
July 8, 2010
__________________
Date
2
0120090176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090176