Horace A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 14, 2019

0120172198 (E.E.O.C. Feb. 14, 2019)

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

Horace A.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172198

Hearing No. 420-2016-00041X

Agency No. ARCEVICK14DEC04752

DECISION

On June 8, 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
April 14, 2017 final 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 Electrician, WG-11,
at the Agency’s U.S. Corps of Engineers, Vicksburg District facility in Murfreesboro, Arkansas.

On January 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (68) when, on October 23, 2014, the Agency notified Complainant
that he was not selected for two Power Plant Electrician A positions at the Degray Power Plant or
the Narrows Power Plant.

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.
0120172198

2
Complainant applied to both postings and was interviewed, but not selected. The two selectees
(Selectee 1 and Selectee 2) were both under 40 years old. The Agency conducted a single hiring
process for both positions. After posting both positions, the Agency received 21 applicants. The
Agency formed a selection panel of five employees in senior engineer positions and the selecting
official. The panel conducted a single interview for both positions. The panel first individually
ranked all of the applicants based on the strength of their resumes. Panel members ranked
Complainant between second and ninth. Selectee 1 was ranked between second and fourth.
Selectee 2 was ranked between first and sixth. Following telephone interviews with the candidates,
Complainant ranked first in the panel’s rankings. Selectee 1 ranked either fourth or fifth, and
Selectee 2 ranked between second and seventh.

A panel member and the selecting official (SO) said that the Agency then decided to ask
Complainant, Selectee 1, and Selectee 2 to come in for on-site visits. These on-site interviews were
intended to “give the selection panel a better insight of each individual, and verify the answers
they provided to the questions during the phone interviews.” After the on-site visits, the panel
ranked Selectee 1 and Selectee 2 as the top two candidates, and Complainant was a unanimous
third. According to SO, the Agency then decided to offer the positions to Selectee 1 and Selectee
2. SO denied that age played a role in the selection process, and noted that the same selection
process was used to hire another individual who was 50 years old into a Senior Electronics
Mechanic position.

During the selection process, one of the panel members (P1) provided written explanations for his
rankings. P1 said that Selectee 1 had good communication and listening skills, but had limited
experience in electrical power production and has not worked with a computerized maintenance
management system. Selectee 2 had worked with computerized management systems but had
limited experience in electrical power production and large industrial applications. According to
P1, Complainant had a lot of experience working in large industrial facilities, but had limited
experience in electrical power production and computerized maintenance management systems
and displayed timid communication skills when describing his experience.

Another panel member (P2) also provided written explanations. According to P2, Selectee 1 was
very enthusiastic during the site visit, but lacked hydro-power plant experience that P2 believed
could be corrected with the Agency’s maintenance program. Selectee 2 also lacked hydro-power
plant experience that could be corrected as well, but had electronic background that P2 believed
would be a great benefit given that the industry was moving from electro-mechanical to electronic.
P2 said that Complainant was qualified for the position, but had limited experience with
computerized maintenance programs and a reserved personality. P2 considered Complainant his
first alternate.

SO’s written feedback ranked Complainant second and Selectee 1 third because Selectee 1 did not
have the overall knowledge of the other two candidates. SO believed that Selectee 1 could learn
quickly. SO added that the selectees showed themselves to be very knowledgeable during the on-
site visits, referred to a large amount of equipment in the plant they had worked on, and asked
several questions. In short, the selectees “sold themselves and their abilities.” Complainant,
0120172198

3
however, did not ask any questions or add anything to his candidacy. SO said that the on-site visits
caused Complainant to drop to third in the rankings. The other panelists provided affidavits during
the investigation that corroborated SO’s, P1’s, and P2’s perceptions.

In rebuttal, Complainant argues that he believed the on-site interviews allowed the Agency to
consider his age. Complainant also denied that he lacked computer skills.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew his request. Consequently, 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. Specifically, the Agency found that it provided
legitimate, nondiscriminatory reasons for selecting Selectee 1 and Selectee 2 and that Complainant
did not demonstrate his qualifications were so obviously superior to the selectees as to constitute
discrimination. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends he was never asked any questions during the on-site interview
and argues that the on-site visit was pretext to conceal unlawful discrimination. Complainant
claims that one of the selecting officials openly stated that age played a role in Complainant’s non-
selection and submits additional evidence purporting to demonstrate that he was discriminated
against. Complainant also criticizes the Agency’s investigation because he was not allowed access
to employees to interview and obtain affidavits. Finally, Complainant seeks to have a hearing
scheduled and seeks permission to engage in discovery. Accordingly, Complainant requests that
the Commission reverse the final decision.

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”).

As a preliminary matter, we address two issues raised in Complainant’s appeal. First, Complainant
requests that a hearing be scheduled and he be permitted to proceed with discovery. Complainant
initially exercised his right to request a hearing after receiving the report of investigation, but
subsequently withdrew that request while the matter was pending before an EEOC AJ.
Complainant would have been able to carry out such discovery and present his case in a hearing
0120172198

4
had he not withdrawn his request for a hearing. On appeal, Complainant presents no evidence or
argument that he is entitled to a hearing before an EEOC AJ pursuant to 29 C.F.R. § 1614.108(f).
Therefore, we find that Complainant's current request for a hearing on appeal is untimely. As such,
we shall review the Agency's final decision based on the record before the Commission.

Secondly, Complainant submits new evidence as part of his appeal. As a general rule, however,
no new evidence will be considered on appeal unless there is an affirmative showing that the
evidence was not reasonably available prior to or during the investigation. Violet F. v. Soc. Sec.
Admin., EEOC Appeal No. 0120171231 (July 27, 2018) citing Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015).
See also, e.g., Feitshans v. U.S. Postal Serv., EEOC Appeal No. 01996239 n. 5 (Dec. 21, 2001).
Complainant has not made such a showing.

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In this case, the Agency has met its burden of articulating a legitimate, nondiscriminatory reason.
SO and the selection panelists explained that Selectee 1 and Selectee 2 presented better during the
on-site interview and appeared more enthusiastic for the positions, whereas Complainant did not
ask many questions and appeared, in the words of one selecting official, timid.

Where, as here, the alleged discriminatory action is non-selection, pretext may be found where the
complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer,
0120172198

5
647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among qualified
candidates based on its discretion, provided that the decision is not based upon unlawful criteria.
See Burdine at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997).
It is not the function of this Commission to substitute its judgment for that of management officials
who are familiar with the needs of their facility, and who are in a better position to make decisions,
unless other facts suggest that proscribed considerations of bias entered the decision-making
process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing
Bauer at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005)
(personnel decisions and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation).

As Complainant chose to withdraw his request for a hearing, the Commission does not have the
benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant’s age was a factor in any of the
Agency’s actions. The Commission finds that Complainant failed to show that his qualifications
for the position at issue were plainly superior to those of the selectees. In this case, the selectees
had attributes that justified their selections, and the selecting official and selection panel members
affirmed that they believed the selectees were better equipped to meet the Agency's needs.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory animus
was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission
finds that Complainant has not established that he was subjected to discrimination as alleged.

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.
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
0120172198

6
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.
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.

0120172198

7
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

February 14, 2019
Date