Complainant,v.Ken L. Salazar, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Mar 14, 2013

0120111419 (E.E.O.C. Mar. 14, 2013)

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

,
Complainant,

v.

Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120111419

Agency No. MMS-10-0396

DECISION

On January 6, 2011, Complainant filed an appeal from the Agency’s December 14, 2010, 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 a Petroleum
Engineer, GS-13, at the Agency’s Bureau of Ocean Energy Management, Regulation, and
Enforcement (BOEMRE), Gulf of Mexico Region, in the Resource Evaluation Section located
in New Orleans, Louisiana. From April 9, 2010, through April 23, 2010, the Agency posted
an opening for an Interdisciplinary: Supervisory Geologist/Supervisory
Geophysicist/Supervisory Petroleum Engineer, GS-14. Complainant applied for the
Interdisciplinary position. A merit promotion certificate was prepared listing Complainant and
two other GS-13 candidates on the best qualified list and a certificate of eligible candidates was
prepared listing only one GS-14 candidate as qualified for a total of four overall candidates.
All four candidates were interviewed by the Regional Supervisor for Resource Evaluation,
Gulf of Mexico Region, (Person A), and the Deputy Regional Supervisor for Resource
Evaluation, Gulf of Mexico Region, (Person B). Person B was the Selecting Official for the
position and the Deputy Regional Director, Gulf of Mexico Region, (Person C) was the
concurring official. The Agency hired a GS-14 Supervisory Geologist (Selectee) for the
position.

On July 8, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (60) when:
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On May 10, 2010, Complainant was informed that he was not selected for an
Interdisciplinary GS-14 position (Supervisory Petroleum Engineer, Supervisory
Geologist, or Supervisory Geophysicist) that he applied and interviewed for under
Vacancy Announcement MMSS-KD-10-27.

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). In accordance with Complainant’s request, 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.

In its final decision, the Agency noted that Complainant claimed that during his interview he
was not asked specific questions pertaining to the job, but rather, he said that the questions
focused largely around the replacement of older supervisors with younger scientists. The
Agency found Complainant established a prima facie case of discrimination.

The Agency noted it articulated legitimate, non-discriminatory reasons for not selecting
Complainant for the position at issue. Specifically, the Agency noted that Person A stated that
Complainant interviewed very well and that Person A did not feel it was necessary to discuss
Complainant’s qualifications with him because of the depth of Complainant’s application and
his knowledge of Complainant’s work. The Agency noted that Person A explained that any
discussion relating to retirement or inferring age had to do with succession planning as 40 of
the Resource Evaluation organization’ s 140 full-time employees were eligible to retire at that
time while 10 out of 16 supervisors under his direction would be eligible to retire in Fiscal
Year 2011. Person A stated that one of the roles of the newly hired GS-14 would be to
identify talent to groom into managerial opportunities.

The Agency noted that Person A stated that the geological/geophysical capabilities of the
Selectee weighed heavily in the selection decision as the Selectee had done extensive geological
mapping, had been an ADP Coordinator for the Resource Evaluation, and had more recently
utilized current software and hardware while being a unit supervisor in the geological and
geophysical unit. The Agency noted that Person A also referenced Complainant’s absence
from the organization from 1998 – 2009. The Agency noted that Person A also stated that the
GS-14 position would have responsibilities for all four units under his supervision, and he felt
the Selectee had the best understanding of those four units.

The Agency noted that Person B previously held the Interdisciplinary GS-14 position for five
to six years, prior to working as the Deputy Regional Supervisor. The Agency noted that
Person B stated that Complainant was not his preferred candidate because his focus during the
interview was limited to a data-centric approach that did not address other issues that were also
important, such as personnel issues, people-relate issues, and geology. The Agency noted that
Person B stated that the data approach was only appropriate to one of the four units under the
responsibility of the GS-14 position.
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The Agency found Complainant failed to show that its reasons for its actions were a pretext for
discrimination. While the Agency noted that the Selectee did not have the same volume of
experience as Complainant, it stated the record showed that the Selectee had more relevant
experience in a wider range of areas and more recent experience with Agency software and
hardware- in part- due to Complainant’s absence from the Agency between 1998 and 2009.
Specifically, the Agency noted that the Position Description for the Interdisciplinary positions
lists the supervision of “the implementation and use of various databases and programs to
process and analyze geophysical, geological, statistical and other data pertinent to resource
evaluation mapping activities” as one of the Major Duties and Responsibilities of the position.
The Agency noted that the Selectee’s application verified his use of advanced software
application and hardware within the last four years while Complainant’s application is not as
clear in addressing recent use of current Agency software and hardware. Finally, with regard
to the discussions relating to retirements within the department, the Agency determined that
there was no age animus with respect to the questions surrounding succession planning as part
of the interview process.

On appeal, Complainant claims that during the interview, Person A asked questions about
succession planning which Complainant states was an excuse to bring up age, retirement, and
up-and-coming young employees. Complainant claims that “identifying talent to groom into
managerial opportunities” was not a stated duty or responsibility identified on either the job
announcement or the position description. Additionally, Complainant argues that The Merit
Promotion Guidebook for the Minerals Management Service (MMS) and the MMS Director’s
Zero Tolerance Policy prohibits discussing succession planning during the interview process.
Furthermore, Complainant claims that he is being punished for leaving the government to work
in the private industry from 1998 – 2009.

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”).

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
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The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its
actions, which Complainant failed to show by a preponderance of evidence were based on
discriminatory animus. Despite Complainant’s contention to the contrary, we find no evidence
that the Agency’s Merit Promotion Guidebook for the MMS or the MMS Director’s Zero
Tolerance Policy prohibited discussing succession planning during an interview. Moreover,
even if there were such a prohibition, we note the record reveals that all candidates were asked
the same five questions during the interview process, including the question regarding
succession planning. In addition, we note that in his affidavit, Complainant acknowledged that
the Agency’s concern regarding succession planning was a relevant question due to planning
for the future of the organization. Furthermore, even assuming that Complainant’s contention
that he was being punished for leaving the government to work in the private industry from
1998 – 2009 is true, we do not find this to be evidence of age discrimination. Finally, we note
that Complainant has not shown that his qualifications were plainly superior to those of the
Selectee.

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
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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
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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

March 14, 2013
Date