Ervin A.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

2019000995 (E.E.O.C. Apr. 16, 2019)

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

Ervin A.,1
Complainant,

v.

Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.

Appeal No. 2019000995

Agency No. HUD-00012-2018

DECISION

On September 29, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s December 20, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

On November 27, 2017, Complainant, a job applicant for three positions with the Agency in
Philadelphia, Pennsylvania, filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him based on race (African-American) and age (over 40) when on
October 8, 2017, he became aware that he was not selected for the positions of Community
Planning and Development Representative advertised under Vacancy Announcement Numbers
17-HUD-235 and 17-HUD-795, and the position of Equal Opportunity Specialist advertised
under Vacancy Announcement Number 17-HUD-583.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
December 20, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

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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The instant appeal followed. Complainant, on appeal, argues that the Agency erred finding no
discrimination and reiterates his contentions that he was subjected to unlawful discrimination as
he was the best qualified for the positions at issue.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The record reflects that during the relevant period Complainant was employed as a Mail Handler
with the United States Postal Service since 1996. His role involves working “within a team
environment to ensure the timely processing and distribution of the mail to its final destination.”
Complainant also held a 3-month appointment as temporary Supervisor of Customer Service in
2014.

Non-selection for the positions of Community Planning and Development Representative

Complainant asserted that he was not selected for the positions of Community Planning and
Development Representative advertised under Vacancy Announcement Numbers 17-HUD-235
and 17-HUD-795.

The Office of Community Planning and Development oversees a variety of federal grants
awarded to state and local governments.
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The application for the Community Planning and Development Representative required
applicants to answer a series of questions about their work experience. In his response to the
application questions, Complainant stated “None of the above” to questions asking whether he
had any experience implementing federal, state or local programs, researching laws and
regulations, and working in the fields of housing, homelessness, economic development or
community development.

Regarding Community Planning and Development Representative position advertised undr
Vacancy Announcement Number 17-HUD-795, the Bureau of the Fiscal Service of the
Department of Treasury performed the initial analysis of 27 applicants on behalf of the Agency.
Complainant’s application materials were evaluated, and he was given an overall score of 78.36
which was one of the lowest scores of the eligible applicants. Complainant was placed on a
Merit Promotion Certificate and designated as a “Non-Competitive Eligible” candidate at the
GS-09 grade level.

The selectee who was selected for the position of Community Planning and Development
Representative received an overall score of 100 and she was designated a “Non-Competitive
Eligible” candidate at the GS-12 grade level.

Regarding the Community Planning and Development Representative position advised under
Vacancy Announcement Number 17-HUD-235, Complainant appeared on the Merit Certificate
as a “Non-Competitive Eligible” candidate at the GS-09 level, while the selectee was designed as
a “Non-Competitive Eligible” at the Grade-12 level.

The Director, Philadelphia Office of Community Planning and Development (African-American,
over 40) was the selecting official for the two Community Planning and Development
Representative positions. The Director stated that the most important criteria he relied upon
when evaluating the applicants were their resumes and their responses to the application
questions. The Director stated that after reviewing the applicants’ resumes and response to the
application questions, he chose the selectee. The Director stated that the selectee “had more
extensive work experience directly related to the posted position.”

Moreover, the Director stated that he did not discriminate against Complainant based on his race
and age.

The record reflects that the selectee had been employed at the Centers of Medicare and Medicaid
Services with the Department of Health and Human Services since 2011, serving as a Grants
Policy Specialist, Grants Management Officer, and Financial Management Specialist. She also
had prior experience at the Department of Labor and Department of Veterans Affairs.

In her response to the application questions, the selectee indicated that she had experience
implementing and managing programs, researching legal requirements, and ensuring that
projects meet applicable regulatory requirements in the field of housing, homelessness, economic
development or community development.
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Non-selection for the position of Equal Opportunity Specialist

Complainant alleged that he was not selected for the position of Equal Opportunity Specialist
advertised under Vacancy Announcement Number 17-HUD-83.

The Equal Opportunity Specialist duties include investigation housing discrimination complaints,
analyzing evidence, preparing final investigative reports, performing compliance review of
federal funding recipients, and negotiating compliance agreements with housing providers.

In his application for the Equal Opportunity Specialist position, Complainant indicated that he
had no experience conducting investigations under the Fair Housing Act or other civil rights
laws, interpreting laws and regulations or monitoring compliance with laws and regulations.

The selectee who was selected for the Equal Opportunity Specialist was employed as an attorney
for the U.S. Securities and Exchange Commission (SEC) where his role involved conducting
analysis and developing guidance for the Office of Compliance, Inspections, and Examinations.
Prior to joining SEC, the selectee served as a Presidential Management Fellow at the Agency,
including completing a rotational assignment as an Equal Opportunity Specialist.

The Bureau of the Fiscal Service of the Department of Treasury performed an initial analysis of
the applicants for the Equal Opportunity Specialist position. The record reflects that out of 18
applicants that applied for the subject position. Complainant received an overall score of 74.33,
placed on the Merit Promotion Certificate and referred to the Agency as a “Non-Competitive
eligible for the GS-09 level. The selectee received an overall score of 96.67 and was referred to
the Agency at the GS-12 grade level.

Finally, we note that on appeal, Complainant attempted to establish pretext by focusing on what
he considers to be his best qualifications for the positions at issue. Complainant may be able to
establish pretext with a showing that his qualifications were plainly superior to those of the
selectees. Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Upon review of the record, we find that
Complainant has not established that his qualifications for the positions at issue were clearly
superior to those of the choice of the selectees. We further find that Complainant has not
presented sufficient argument or evidence to establish that the Agency’s explanation for its
selections were pretext intended to hide discriminatory motivation.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 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 16, 2019
Date