Curt R.,1 Complainant,v.Edward Hugler, Acting Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0120150718 (E.E.O.C. Apr. 27, 2017)

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

Curt R.,1
Complainant,

v.

Edward Hugler,
Acting Secretary,
Department of Labor,
Agency.

Appeal No. 0120150718

Hearing No. 532-2013-00067X

Agency No. 12-05-121

DECISION

On November 25, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 28, 2014, final order concerning his equal employment opportunity
(EEO) 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. and 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Wage and Hour
Investigator, GS-1849-12, with the Wage and Hour Division, Columbus District Office in
Columbus, Ohio. On August 31, 2012, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of national origin (Latino, Hispanic and Puerto
Rican), and age (50) when he was not selected for the Senior Investigative Advisor (SIA) GS-
1849-13 position, Vacancy Announcement No. MS-12-CHI-WHD-0075, in the Wage and
Hour Division located in Columbus, Ohio.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Following 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). Complainant timely requested a hearing. When Complainant did not object, the AJ
assigned to the case granted the Agency’s March 10, 2014, motion for a decision without a
hearing. The AJ issued a decision without a hearing on September 29, 2014. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

Disparate Treatment

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). Complainant must initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Upon review of the record, we agree with the AJ’s findings and
conclusions that Complainant failed to present evidence that the Agency’s articulated
legitimate, non-discriminatory explanation for not selecting him for the SIA position is a
pretext or is otherwise motivated by discriminatory animus. Specifically, the undisputed
record shows that the selecting official (SO) and the Acting Deputy Regional Administrator
(AD) interviewed each applicant telephonically using the same standard interview questions,
and based their selection on the candidates’ training skills and the diversity of technical skills.
The SIA vacancy was originally intended to fill four positions. However, Agency officials
explain that a decision was later made not to fill the fourth vacancy because the SIA was a new
position and the workloads and priority needs for the upcoming year were still uncertain.

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After review of the applications and interview notes, SO and AD selected three selectees (SE1
– Hispanic, 50 years old, SE2 - Caucasian, non-Hispanic, 29 years old, and SE3 - Caucasian,
non-Hispanic, 35 years old). SO asserts that he believed the selectees communicated better
than Complainant during their interviews and presented stronger written application packages
than Complainant. SO further notes that Complainant’s application and resume were not as
fully documented, explanatory, or reflective as the selectees’ and fell short of fully delineating
his work experience. SO and AD found the selectees to be well prepared for their interviews,
that they had articulated clear and detailed responses to the interview topics, and that they
disclosed a wide range of enforcement experience and skills. The interview notes support the
Agency’s assertions.

We agree with the AJ that the record is devoid of evidence of pretext. Complainant’s pretext
argument relies on the fact that his length of service was longer than the selectees’ which he
asserts establishes that he is more qualified. However, the record shows that all applicants
were GS-12 Wage Hour Investigators with the Wage and Hour Division. Complainant started
in 1998 (i.e., 20 years), SE1 started in 1995 (i.e. 17 years), SE2 started in 2007 (i.e., 5
years), and SE3 started in 2000 (i.e., 12 years). The undisputed record shows that all
applicants were qualified for the SIA position. We agree with the AJ that Complainant’s
length of service alone is insufficient to establish that his qualifications were plainly superior to
those of the three selectees. Complainant failed to present evidence contradicting the Agency’s
articulated explanation for not selecting Complainant for the SIA position. We also agree with
the AJ that the record is devoid of evidence of discriminatory animus on the part of any
responsible Agency official. Accordingly, we agree with the AJ’s conclusion that Complainant
failed to present sufficient evidence that the Agency’s explanation was a pretext or otherwise
motivated by discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action which adopts the AJ’s
decision finding insufficient evidence of discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

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

April 27, 2017
Date