Complainant,v.Thomas E. Perez, Secretary, Department of Labor (Employment Standards Administration), Agency.

Equal Employment Opportunity Commission

May 15, 2015

01-2013-1975-0500 (E.E.O.C. May. 15, 2015)

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

,
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor
(Employment Standards Administration),
Agency.

Appeal No. 0120131975

Agency No. 12-07-099

DECISION
Complainant filed an appeal from the Agency’s April 8, 2013 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, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Wage and Hour
Investigator at the Agency’s facility in Moline, Illinois. On July 6, 2012, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the bases of age (62) and
in reprisal for prior protected activity when:

On April 17, 2012, Complainant learned that he was not selected for the
position of Wage and Hour Investigator,1

GS-1849-13 under Vacancy
Announcement No. MS-12-CHI-WHD-007S.
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). 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).

1 The record on appeal also describes the position as that of a Senior Investigator Advisor.
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2
In its Final Decision, the Agency found that Complainant applied for the identified position and
was found qualified for the position. Complainant and other qualified applicants received
interviews. The Agency found that according to S1, one of the two officials conducting
interviews, that Complainant and eight other candidates were interviewed by telephone. S1
stated that all candidates were asked the same 12 questions. S1 noted that during the
interview, Complainant’s communication skills were weak, and that other candidates fared
better during the interview process and had stronger written application packages. S1, the
Agency found, noted that Complainant struggled with some answers and believed the position
was more of a training position than that of a leader or coordinator position. S1 stated that
seniority was not one of the factors considered in determining the top candidates for selection.

S2, the other official participating in the interview process, stated that only three of the four
positions the Agency expected to fill through the announcement actually were selected. S2
stated that after he and S1 interviewed Complainant, they came away with the impression that
Complainant’s responses to the interview questions were just “ok.”

The Agency also considered the statements of the Regional Administrator, S3, who reviewed
the candidates recommended for selection with the selecting official. S3 confirmed that
Complainant was qualified for the position but stated that he was not considered a top
candidate at the end of the interview process and he was therefore not one of the candidates
whose qualifications she reviewed with the selecting official.

The Agency concluded that the selected candidates were considered by S2, the selecting
official, to be well organized, responsive, and well prepared throughout the interview process.
The Agency found that both S1 and S2 found the selected candidates to be more focused and to
have stronger written application materials than Complainant presented. S1, S2, and S3, the
Agency noted, denied that Complainant’s age or prior protected activity played any role in the
selection process. The Agency found that Complainant’s qualifications were not plainly
superior to those possessed by the selected candidates and that Complainant did not show that
the Agency’s reasons for selecting the three candidates that it did were a pretext to mask
discrimination. The Agency’s Final Decision concluded that Complainant failed to prove that
the Agency subjected him to discrimination as age or reprisal discrimination as alleged.

On appeal, Complainant states that he was not given the opportunity to request a hearing
before an AJ. On appeal, the Agency states that Complainant received the Agency’s Report of
Investigation along with instructions regarding any request for a hearing, and was reminded by
an electronic mail message of the deadline for requesting a hearing.

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
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3
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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In an attempt to prove pretext, Complainant may establish that that his qualifications are
“plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury, EEOC
Request No. 05950156 (May 9, 1996). Additionally, the Commission has found that an
employer has discretion to choose among equally qualified candidates, provided the decision is
not based upon unlawful criteria. See Texas Dep’t of Comm. Affairs v. Burdine

, 450 U.S.
248, 259 (1981).
As a preliminary matter, we note the record on appeal includes documentation of the delivery
of a parcel from the Agency to Complainant on January 4, 2013, as well as an electronic mail
message from an Agency Civil Rights official to Complainant, dated February 7, 2013,
reminding him of the time limit for requesting a hearing from the EEOC with respect to his
complaint of discrimination. We find that the Agency properly issued its Final Decision after
Complainant failed to request a hearing within the requisite time frame.

In the instant case, we find the Agency’s Final Decision is supported by the evidence. We find
no dispute that Complainant was qualified for the identified position, that Complainant received
an interview, and that Complainant was subsequently not selected for any of the three positions
filled through the announcement. We find no dispute that all three selected candidates were
younger than Complainant.2

2 The record indicates the selected candidates were 29, 35, and 40 years of age at the time the
selections were made.
The record confirms that Complainant served as a union official
for the Agency’s employees for many years and we find no dispute that Complainant’s
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assistance to employees included matters of discrimination. Even so, we find the Agency
articulated legitimate, nondiscriminatory reasons for its selection decision.

We find that neither S1 nor S2 found that Complainant’s interview answers placed him among
the top candidates for the identified position. We find no evidence that the selecting official
(S2) or recommending official (S1) or the reviewing official (S3) considered the number of
years of experience as a criterion for determining the best qualified candidates. We consider
S3’s statement that the identified position was a new position being filled in the region. S2
noted that the selected candidates communicated a better idea of the position’s function and
goals that S2 termed, a leadership/coordinator position. S2 noted that the selected candidates
exhibited “forward thinking” that Complainant did not express. We find that S1 and S2
agreed the selected candidates were better prepared for the interview. We find no evidence
that Complainant’s age or prior protected activity played any role in the Agency’s selection
process.

CONCLUSION
Based on a thorough review of the record, 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.
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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

Date
May 15, 2015