0120083915
08-17-2011
Harry Derderian, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Harry Derderian,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120083915
Hearing No. 570-2008-00190X
Agency No. DOS-F-048-07
DECISION
Complainant filed an appeal from the Agency’s August 12, 2008 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Project Manager at the Agency’s Overseas Building Operations
facility in Rosslyn, Virginia. On April 9, 2007, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
basis of age (60) when:
On February 2, 2007, Complainant was not selected for the
position of Supervisory General Engineer/Architect, GS-801-15,
(Vacancy Announcement No. 060212).
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 EEOC Administrative Judge (AJ). Complainant
requested a hearing but by order dated April 22, 2008, the AJ denied
the hearing request on the grounds that after “the Agency properly
propounded discovery to Complainant, pursuant to the express authorization
contained in the [AJ’s] Acknowledgment and Order, . . . Complainant
failed to respond in any manner to the Agency's discovery request.”
AJ’s April 22, 2008 Order; Record on Appeal at 20. In his order,
the AJ remanded the complaint to the Agency, to issue a final decision
pursuant to 29 C.F.R. § 1614.110(b). Id. at 2. In its August 12,
2008 Final Decision, the Agency found that Complainant established a
prima facie case of discrimination based on age in that he applied for
and was found qualified for the identified position. The Agency noted
that Complainant was not selected and that the selectee was substantially
younger than Complainant. Agency’s Final Decision (Ag Decision) at 6.
However, the Agency found that Complainant failed to show that the
Selecting Official’s (SO) reasons for not selecting Complainant were a
pretext to mask discrimination. Specifically, the Agency noted that SO
stated that Complainant received the lowest composite score among the
candidates interviewed by the selection panel. Id. The Agency found
that Complainant’s qualifications were not plainly superior to those
possessed by the selectee, noting that both had extensive experience as
Project Managers and Contracting Officer’s Representatives (COR), but
that the selectee possessed a doctoral degree in civil engineering, while
Complainant possessed a bachelor’s degree. Id. at 8. The Decision
concluded that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. Id. at 9, 10.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the AJ abused his discretion when he
cancelled Complainant’s hearing request without adequate notice that
Complainant’s failure to submit timely discovery responses could result
in cancelation of the hearing. [Complainant’s] Statement In Support
Of Appeal, October 27, 2008, at 7. Complainant states that the AJ’s
general Acknowledgment and Order issued on February 7, 2008 was in no
way a notice tailored to Complainant’s situation as contemplated
in Redmond v. Department of Agriculture, EEOC Appeal No. 01A60345
(May 17, 2006), and that the AJ’s decision to deny Complainant’s
hearing request is too harsh a sanction for Complainant’s conduct.
Id. at 6. Complainant requests that the Commission vacate the Final
Decision and remand the complaint to the Agency for a hearing with a
different Administrative Judge. Id. at 10.
ANALYSIS AND FINDINGS
The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges. 29 C.F.R. § 1614.109; Rountree
v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13,
2001). Before sanctions are imposed, the Commission requires an AJ to
issue an order to the offending party that makes clear that sanctions may
be imposed and the type of sanction that could be imposed for failure
to comply with an order unless the party can show good cause for that
failure. Id. We consider Complainant’s reliance on the Commission’s
decision in Redmond v. Dep’t of Agriculture, EEOC Appeal No. 01A60345
(May 17, 2006). In that matter, the Commission reversed a dismissal
of the complaint after complainant failed to answer discovery. The
Commission found that dismissal was too harsh a sanction. We find however
in the instant case, that the AJ properly denied Complainant’s hearing
request, as opposed to dismissing Complainant’s complaint, as a sanction
(as described in the AJ’s February 6, 2008 Acknowledgment and Order;
Record on Appeal, (ROA) vol. 2 at 60) for his failure to timely respond to
the Agency's interrogatories. We note that the Consent Motion to Extend
Discovery does not propose a date by which Complainant will answer the
Agency’s interrogatories. Additionally, the Consent Motion acknowledges
that as of April 14, 2008, the Agency’s motion to compel Complainant’s
answers to interrogatories remained outstanding. ROA, vol. 2, at 21.
We therefore find the AJ’s denial of Complainant’s hearing request
was not an abuse of discretion. See Council v. Department of Veterans
Affairs, EEOC Appeal No. 0120080321 (April 9, 2010).
We thus turn to the merits of Complainant’s complaint, we consider the
Agency’s Final Decision finding no discrimination. In the instant case,
we note that Complainant achieved the lowest composite score from the
rating panel members conducting the interviews among the candidates for
the identified vacancy. ROA, vol. 1 at 276, 281 and 286. We find further
that as the Agency noted, the selectee possesses a graduate degree, which
Complainant does not. Id at 261. Upon review, we find that Complainant
failed to show that his qualifications for the position were plainly
superior to the selectee's qualifications or that the Agency's action
was motivated by discrimination. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995).
CONCLUSION
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 (Nov. 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 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
August 17, 2011
__________________
Date
2
0120083915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083915