Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jan 31, 2013

0120121448 (E.E.O.C. Jan. 31, 2013)

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

Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120121448

Hearing No. 460-2011-00122X

Agency No. P-2010-0751

DECISION

Complainant filed an appeal from an Agency’s final order dated January 4, 2012, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, Complainant alleged discrimination based on age (over 40) when on July 22,
2010, he was not selected for the position of Information Technology (IT) Specialist, GS-
5/7/9, Announcement No. POL-2010-0030-FCC-Pollock. The record indicates that at the
conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On November 17, 2011, the AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the Agency in its final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
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An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Despite
Complainant’s contentions on appeal, we do not find any improper conduct on the part of the
AJ during the hearing process.

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The AJ noted that on February 24, 2010, the Agency
posted Vacancy Announcement No. POL-2010-0030, IT Specialist, GS-5/7/9. The record
indicates that Complainant, a Senior Officer Specialist, GS-8, applied for the subject position
at the GS-7/9 level. His name was included in the merit promotion certificate for the position
at the GS-7 level.

The Selecting Official (SO) for the position stated that he selected an identified selectee for the
position at the GS-5 entry level based on his education, prior experience, his references, and in
part after having determined an advantage of adding an outside candidate to the FCC Pollock
staff. The SO indicated that the selectee held a bachelor’s degree in mathematics and physics
and served as a systems control officer in the U.S. Navy. Specifically, the SO stated that he
had also personally obtained a reference for the selectee from the identified Warden of the
Oakdale facility where the selectee had worked as a correctional officer prior to the subject
selection. The SO indicated that he gave great weight to that recommendation.

The AJ found that Complainant failed to prove by a preponderance of the evidence that his
nonselection for the subject IT position was motivated by his age. Specifically, the AJ noted
that Complainant was extremely qualified for the subject position by virtue of a specialized
associate degree and the familiarity he gained with the Pollock IT systems, but the SO credibly
testified that he desired to fill the positing with a qualified outside candidate at the entry level,
i.e., GS-5 level, and truly believed he had found the best candidate in the selectee after
considering his written application materials reflecting his education and experience and after
receiving a glowing recommendation from the Warden of the Oakdale facility.

The AJ stated that Complainant failed to show by a preponderance of the evidence that the
Agency’s proffered reasons were pretextual. Upon review, we find that the AJ’s factual
findings of no discriminatory intent are supported by substantial evidence in the record.

CONCLUSION

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

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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
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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

January 31, 2013
Date