Complainant,v.Penny Pritzker, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Mar 25, 2015

0120132160 (E.E.O.C. Mar. 25, 2015)

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

,
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120132160

Agency No. 63-2012-01976

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated April 22,
2013, finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding of
no discrimination.

BACKGROUND
In his complaint, dated September 20, 2012, Complainant, a Senior Field Representative, GS-
0303-06, at the Agency’s Los Angeles Regional Office, alleged discrimination based on race
(African American) when on July 16-18, 2012, he was informed by an identified Selecting
Official (SO) that he was not selected for the position of Field Supervisor, GS-0303-06/07/08,
as advertised under recruitment bulletin number LARO-2012-FSA-7287-83-IN.1

After
completion of the investigation of the complaint, Complainant requested a final Agency
decision. The Agency thus issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

1 The Agency noted in its final decision that Complainant also raised his nonselection for the
position of Field Leader, GS-0303-05, but he later indicated that he did not apply for the
position and he was no longer pursuing the matter, thereby effectively withdrawing the subject
claim. On appeal, Complainant does not contest this.
0120132160

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”).
After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. The SO for the position at issue indicated that he knew
Complainant for two and a half years and was aware of his work performance. Specifically,
the SO stated that Complainant, as a Senior Field Representative, was very good at handling
converting refusal cases, working difficult cases, and doing challenging interviews. However,
stated the SO, Complainant performed consistently poorly concerning team leading and
management skills which were the skills very important for the Field Supervisor position at
issue. The SO also indicated that Complainant received low interview ratings compared to the
selectee for the position at issue. The SO indicated that his decision not to select Complainant
for the position at the issue was based on his experience working with Complainant and his
performance as a team leader and performance on the job interview. The SO stated that
although Complainant had more experience, the selectee was highly motivated and answered
the interview questions more from the perspective of a leader/supervisor, which were the
important factors for the position at issue.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that his qualifications for the position were plainly superior to the selectee’s
qualifications. See Wasser v. Department of Labor

, EEOC Request No. 05940058 (November
2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s
action was motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

0120132160

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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
0120132160

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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

Date
March 25, 2015