Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-2790-0500 (E.E.O.C. Aug. 14, 2015)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120132790

Agency No. OCFO-2011-00687

DECISION

On July 23, 2013, Complainant filed an appeal from the Agency’s June 19, 2013 final decision
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. Our review is de novo. 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 Information
Technology Specialist, GS-2210-13, at an Agency facility in New Orleans. On July 30, 2011,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated
against her on the basis of her age (55) when on May 8, 2011, she was not selected for either
of two Supervisory Information Technology Specialist positions advertised under
announcement numbers NFC-11-116RP and NFC-11-116-RP. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation.1

1 The record does not contain evidence that Complainant received notice of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant had previously received a Notification of Rights during the informal EEO
complaint process that stated she has the right to request a hearing before an AJ after
completion of the investigation or 180 calendar days from the filing of a formal complaint
whichever comes first. We note that Complainant does not argue on appeal that she would

The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
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The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The Agency stated that Complainant has worked for the government in the field of
information technology security for 26 years. Complainant applied for the Supervisory
Information Technology Specialist positions on March 20, 2011. Complainant was not
selected for either position. According to Complainant, she was a superior candidate
compared with the selectees based on her experience, training, education and consistently high
performance ratings. Complainant stated that she has received superior ratings for the past 26
years.

The Agency noted that Complainant argued that the Associate Director, Information
Technology Security, uttered comments and engaged in activity that reflected a bias against
older employees. Complainant claimed that the Associate Director referred to her group as the
senior group and that he asked her how many years of service she had. Moreover,
Complainant accused the Associate Director of talking down to her; attempting to lower her
performance evaluation; issuing her a low cash award; structuring the job interview in a biased
manner; providing more favorable work conditions to younger workers; publishing an unfair
job description; requiring her to lower her employee’s ratings; being upset when another older
worker was hired; causing two staff members to request leave due to age-related issues;
removing her mentorship opportunity and assigning it to a younger employee; removing her
from key supervisory roles; and causing other employees to file EEO complaints.

The Associate Director denied that age was a factor in Complainant’s nonselection. The
interview panel was comprised of the Associate Director and the Chief of Staff. According to
the Associate Director, there were eight applicants, seven of whom were over forty years old.
The Associated Director stated that he ranked Complainant seventh out of eight because she
lacked the necessary skills for the position. The Agency noted that the selectees were 49 and
55 years old, respectively.

With regard to the specific accusations raised against him, the Associate Director asserted that
Complainant was not performing her job adequately; her cash award was pursuant to office
policy; he structured the interview process adequately; he did not create more favorable work
conditions for younger employees; he gave specific instructions not to hire the new employee
due to a lack of proper hiring standards; he assigned workers to key roles and mentorships
based on their skills; and EEO complaints are being filed against him due to worker
unhappiness.

The Agency determined that Complainant failed to establish a prima facie case of age
discrimination. The Agency based its determination on the fact that both selectees were in the
same protected class as Complainant. The Agency noted that Complainant is 57 years old and
the selectees are 49 and 55, respectively. The Agency acknowledged that age discrimination

have requested a hearing if apprised of the option when she received the report of
investigation.
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claims can exist where comparisons are younger than a complainant but over forty years old.
However, the Agency reasoned that Complainant and the selectees are close in age, thereby
negating an inference of age discrimination.

Assuming arguendo Complainant had set forth a prima facie case, the Agency determined that
it articulated a legitimate, nondiscriminatory reason for Complainant’s nonselection. The
Agency observed that both the Associate Director and the Chief of Staff stated that
Complainant lacked the necessary skills for the position. With regard to Complainant’s
argument of pretext, the Agency stated that simply having more years of experience does not
make an individual automatically better qualified. The Agency determined that Complainant
failed to prove that she was the superior candidate for the position. As for the other instances
where Complainant believed the Associate Director treated her badly due to her age, the
Agency asserted that even if these matters raised an inference of discrimination, they were
negated by the fact that the selectees were in the same protected class as Complainant.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her credentials and accomplishments warranted her
selection for the Information Technology Specialist positions. Complainant provides a litany
of examples attesting to her knowledge base and skills. Complainant references duties she
performed as a supervisor, acting supervisor, project leader and budget officer. Complainant
also submits evidence of various performance awards that she received.

ANALYSIS AND FINDINGS

Complainant was not selected for two Information Technology Specialist positions. She was
57 years old at the time. The selectees were 55 and 49 years of age, respectively. Although
both of these selectees were also within Complainant’s protected group, we find that the eight
year age difference between Complainant and one of the selectees is sufficient for Complainant
to set forth a prima facie case of age discrimination. See Complainant v. Department of
Transportation, EEOC Appeal No. 01983809 (January 7, 2000).

The Associate Director explained that Complainant was not chosen for the positions because
she was ranked seventh among the eight candidates. Complainant had a total of 82.45 points.
The selectees had the two highest scores 99.65 and 99.45 points, respectively. According to
the Associate Director, Complainant lacked the necessary skills for the position. The
Associate Director stated that when he became Staff Chief, Complainant was serving as a
supervisor for the Application System Configuration Management Group under the branch of
the Information Security Quality Assurance Office. The Associate Director explained that
when the Division was planning the realignment of the Information Security Policy and Control
Staff with Information Technology Security, it was determined that the Branch Chief would
move into the newly created “Access Management Branch”. According to the Associate
Director, this branch would be responsible for provisioning/deprovisioning access, providing
security reports, capturing audit logs and developing and validating security access
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specifications. The Associate Director stated that the functions were much different from the
role of migrating application data associated with Complainant’s branch, the Information
Security Quality Assurance Office. We find that the Agency articulated a legitimate,
nondiscriminatory reason for its selection decisions.

Complainant argues on appeal that her credentials, accomplishments and overall experience
warranted her selection for the positions at issue. In a non-selection case, pretext may be
shown by a showing that Complainant’s qualifications are observably superior to those of the
selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th

Cir. 1981). In this case, the selectees
had attributes that justified their selection. The 55 year old selectee had credentials that
included nineteen years of experience and education in the Information Systems
Security/Assurance field. The 49 year old selectee had been an Agency employee for over
twenty years, including stints as a Supervisory Information Technology Specialist with the
Information Security Policy and Control Staff, the Information Systems Security Office and the
Monitoring and Reporting Section. Complainant’s 26 years of government work in the
information technology security field do not necessarily make her a better candidate than the
selectees. We find that Complainant’s credentials were not so observably superior to the
selectees’ credentials so as to warrant a finding of pretext. Complainant raised several matters
that she claims reflect a bias against older employees on the part of the Associate Director.
However, we find that Complainant has not refuted the Associate Director’s statements
explaining his conduct in the alleged incidents. We find that Complainant has not presented
persuasive argument or evidence to establish that the Agency’s explanation for its selection
decisions was pretext intended to hide discriminatory intent.
CONCLUSION

The Agency’s determination that no discrimination occurred 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.

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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 (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. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden signature
Carlton M. Hadden, Director
Office of Federal Operations

August 14, 2015
Date