0120101625
08-20-2010
Miguel J. Arsuaga, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Miguel J. Arsuaga,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120101625
Agency Nos. HS-07-TSA-002319, HS-07-TSA-0014861
DECISION
On March 8, 2010, Complainant filed an appeal from the Agency's February 19, 2010, final decision concerning his equal employment opportunity (EEO) complaints 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. The Agency consolidated the above-referenced complaints for a single decision in accordance with 29 C.F.R. � 1614.606. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that he was subjected to discrimination on the bases of age and reprisal for prior protected EEO activity in connection with four non-selections.
BACKGROUND2
At the time of events giving rise to these complaints, Complainant worked as a Supervisory Transportation Security Officer, SV-1801-G at the Agency's Orlando Sanford International Airport in Sanford, Florida. Complainant's Aff.-1, at 2. Complainant retired from the Agency effective September 1, 2007. Id.; ROI-1, at Ex. F54.
On January 23, 2007, Complainant applied for the position of Security Manager, SV-1801-H, advertised under Vacancy Announcement Number TSA-07-0310. ROI-1, at Ex. F35, F40. On February 16, 2007, based on his written application score of 100,3 Complainant was one of 46 candidates placed on the Certificate of Eligibles. ROI-1, at Ex. F37-38. On March 15, 2007, a three-member interview panel interviewed Complainant. ROI-1, Ex. F3, at 2. Complainant received an average interview score of 10.83, ranking him sixteenth among the candidates. ROI-1, Ex. F39, at 1-2. On August 17, 2007, the Certificate of Eligibles expired and the Federal Security Director (SO1) did not make any selections from the certificate. ROI-1, Ex. F3, at 8; Ex. F38, F41. On September 14, 2007, the Agency re-posted the position of Security Manager, SV-1801-H, under Vacancy Announcement Number TSA-07-0945. ROI-1, at Ex. F49. On September 24, 2007, Complainant applied for the position but subsequently withdrew his application because he was no longer eligible to apply due to his September 1, 2007 retirement. ROI-1, at Ex. F53.
In March or April 2007, Complainant applied for the Mid-Level Leadership Development Program, advertised under Vacancy Announcement Number TSA-HQ-2007-0197. ROI-1, at Ex. F24, F34. Complainant, one of 47 candidates who applied, received a written application score of 100.4 ROI-1, at Ex. F25. On May 31, 2007, a three-member panel interviewed Complainant. ROI-1, at Ex. F28. The panel was comprised of a Program Analyst, J-Band (P1), a Training Coordinator (P2), and the Federal Security Director at the Tallahassee Regional Airport (P3). ROI-1, at Ex. F8, F10-11, F28. Each panel member rated the candidates on a scale of one to five on each of the five different interview questions and on overall communication skills. ROI-1, at Ex. F28. Complainant received scores of 24 from P1, 23 from P2, and 25 from P3, for a consensus score of 24. Id. The Assistant Federal Security Director (SO2) selected five candidates for the program. ROI-1, Ex. F5, at 2. The selectees received consensus scores of 27, 27, 30, 30, and 30. ROI-1, at Ex. F29-33.
On June 15, 2007, Complainant applied for the position of Transportation Security Inspector, SV-1801-H, advertised under Vacancy Announcement Number TSA-07-0669. ROI-1, at Ex. F20. On June 21, 2007, based on his written application score of 93.6,5 Complainant was one of 11 candidates placed on the Certificate of Eligibles. ROI-1, at Ex. F17-18. On July 5, 2007, a three-member panel interviewed Complainant. ROI-1, Ex. F19, at 1-2. The panel was comprised of P1 and two Transportation Security Inspectors, I-Band (P4, P5). ROI-1, at Ex. F8-9, F13. Each panel member rated the candidates from a scale of one to five on each of the five different interview questions and on overall communication skills. ROI-1, Ex. F13, at 5; Ex. F19. Complainant received scores of 17 from P1, 19 from P4, and 18 from P5, for a total score of 54. ROI-1, Ex. F19, at 1. On July 19, 2007, the Deputy Federal Security Director (SO3) selected three candidates for the position. ROI-1, at Ex. F18. The selectees, all who were Security Managers, H-Band, received total interview scores of 69, 87, and 90. ROI-1, at Ex. F19, F21-23.
On September 6-7, 2007, Complainant applied for the position of Human Resources (HR) Specialist, SV-0201-H, advertised under Vacancy Announcement Number TSA-MCO-2007-0008. ROI-2, at Ex. F8. On September 25, 2007, based on his written application score of 99.5,6 Complainant was one of 21 candidates placed on the Certificate of Eligibles. ROI-2, at Ex. F10, F12. Under SO2's supervision, a two-member vetting panel reviewed the candidates' application packages and rated each candidate based on his or her interview,7 resume/application, federal HR experience, and education. ROI-2, Ex. F4, at 2; Ex. 13. Complainant received a total score of 45, ranking him eighth among the candidates. ROI-2, at Ex. 13. Complainant received a score of zero for federal HR experience and the accompanying remarks noted, "Retired/No Federal HR Experience." The seven candidates with total scores of 55 to 65 received an interview. ROI-2, Ex. F4, at 3; Ex. 13. On November 13, 2007, SO3 selected one candidate for the position. ROI-2, at Ex. 13. The selectee was a Supervisory Transportation Security Officer, SV-1802-G, who was detailed as a Human Resources Assistant at the time of the selection. ROI-2, at Ex. F15.
Complainant filed the instant complaints, identified as Agency No. HS-07-TSA-002319 and HS-08-TSA-001486, on October 25, 2007 and February 23, 2008, respectively, alleging that the Agency discriminated against him on the bases of age (63) and reprisal for prior protected EEO activity under Title VII when:
1. on July 19, 2007, he was not selected for the position of Transportation Security Inspector, advertised under Vacancy Announcement Number TSA-07-0069;
2. on August 17, 2007, management allowed the Certificate of Eligibles to expire for the position of Security Manager, advertised under Vacancy Announcement Number TSA-07-0310;
3. on September 20, 2007, he learned that he was not selected for the Mid-Level Leadership Development Program, advertised under Vacancy Announcement Number TSA-HQ-2007-0197; and
4. on November 7, 2007, he was not selected for the position of Human Resources Specialist, advertised under Vacancy Announcement Number TSA-MCO-2007-0008.
On April 1, 2008, the Agency issued a letter consolidating Complainant's two complaints for joint processing. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Agency's February 19, 2010 Final Decision (FAD), at 5.
Specifically,8 the Agency found that that management articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to prove that management's reasons were pretextual. Id. at 3. Regarding claim 1, SO3 testified that he did not select Complainant because of his low numerical ranking and his lack of security managerial experience. Id. In addition, SO3 testified that "there was an overage of security managers and the intent was to utilize candidates with security manager experience in the ... position." Id. Regarding claim 2, SO1 testified that the certificate expired without a selection being made due to "funding constraints." Id. at 4. In addition, SO1 testified that the Agency reduced the security manager allocation from 24 to 20 managers and he was trying to increase the allocation back to his original request of 24. Id. Regarding claim 3, P1 testified that Complainant was not selected because of his interview score; Complainant received a score of 24 whereas the selectees received scores that ranged from 27 to 30. Id. In addition, P1 testified that Complainant exhibited difficulty in providing additional details and appeared frustrated in his responses. Id. Further, P1 testified that the selectees presented themselves as being prepared and able to address the questions succinctly, and provided detailed background information to support their responses. Id. Regarding claim 4, SO2 testified that Complainant was not selected because his vetting score fell below that required to receive an interview. Id. at 5. In addition, SO2 testified that Complainant did not possess any specific HR work experience or knowledge of the Agency's HR processes and he needed someone who could "hit the ground running." Id. Regarding pretext for claims 1-4, the Agency found that Complainant produced no evidence proving that management's actions were motivated by discriminatory or retaliatory animus. Id. at 3-5.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that, although the Agency addressed each claim separately, the overall pattern of his non-selections reveals their discriminatory and retaliatory nature. Complainant's March 8, 2010, Appeal Brief, at 1. Regarding his claims generally, Complainant asserts that in each non-selection, his application and interview scores were ranked higher when evaluated blindly by rating personnel at TSA Recruiting and by contracted rating agencies such as QuickHire, than when evaluated by individuals on local vetting and interview panels who knew his identity. Id. Complainant asserts that this suggests a pattern of reprisal for his October 5, 2005, report of sexual harassment against the then Acting Deputy Assistant Federal Security Director. Id. Regarding claim 3, Complainant asserts that the sworn statements by the panel members are "revisionist" accounts of the facts and that they are lying about the interview. Id. at 2-3. Complainant asserts that P2 had told him he was "massively overqualified" for the program and P3 had seemed "overawed" by his interview answers, opined that he should be in the Senior Leadership Program, and offered to mentor him. Id. at 2. Regarding claim 4, Complainant asserts that he did not receive credit from the vetting panel for his HR experience with the Navy, even though he did receive credit from the QuickHire evaluators. Id. In addition, Complainant asserts that P6 and P7 had worked with two of the candidates, including the selectee, on a daily basis for the past several years and were probably in their line of supervision. Id. Finally, Complainant generally asserts that 2005-2007 Agency-wide employee satisfaction surveys show that a majority of employees perceived management to be retaliatory and that the Orlando International Airport was one of the worst places to work in the federal government. Id. at 1; Complainant's April 1, 2010, Appeal Brief, at 1-2.
The Agency did not submit a response on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo 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").
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. Co. 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Agency's Legitimate, Nondiscriminatory Reasons
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of age and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for his non-selections.
Regarding claim 1, SO3 attested that he did not select Complainant because seven candidates were ranked higher and Complainant was not a Security Manager. ROI-1, Ex. F7, at 2. SO3 explained that the selection process was based on security managerial experience and, as the Orlando airport had an overage of Security Managers, management wanted to fill the position with candidates who had Security Manager experience. Id. In addition, SO3 attested that he did not select another candidate who tied for the highest interview score because that candidate was not a Security Manager. Id. Further, P4 and P5 attested that Complainant did not receive a higher interview score because he did not directly address many of the questions regarding aviation security regulatory issues. ROI-1, Ex. F9, at 2; Ex. F13, at 2-4.
Regarding claim 2, SO1 attested that he allowed the Certificate of Eligibles to expire because he was unable to make any selections due to funding issues. ROI, Ex. F3, at 4-9. SO1 explained that his Security Manager budgeted allocation had been reduced from 24 to 20 positions based on a March 9, 2007 e-mail from the Area Director. Id. at 5. SO1 attested that he extended the Certificate of Eligibles for 90 days9 to try to have the allocation increased back to the original level of 24. Id.
Regarding claim 3, P1 attested that he rated Complainant a "3" in interpersonal skills and oral communications because Complainant had difficulty conveying examples of his interpersonal skills to the panel and appeared somewhat frustrated in his responses at times, which caused him to raise his voice level and become noticeably agitated. ROI-1, Ex. F8, at 5. In addition, P3 attested that she rated Complainant similarly in those two categories because his answers did not address other people's involvement or role and did not tie in how his decisions impacted others on his team or in his organization. ROI-1, Ex. F11, at 2-3. Further, P2 attested that Complainant did not interview very well because he sometimes crossed the line from describing his previous experience to bragging about his past career accomplishments. ROI-1, Ex. F10, at 3. Finally, P2 attested that she was looking for candidates who would gain knowledge and skills from the program and did not think that Complainant would benefit from the program; P2 attested that Complainant's interview responses involving his Navy submarine commander experience gave her the impression that he already had the knowledge and skills for mid-level management. Id.
Regarding claim 4, SO2 attested that Complainant did not receive an interview because his resume did not indicate any specific federal HR work experience. ROI-2, Ex. F4, at 3. SO2 explained that this was critical because, with 1,200 employees at the Orlando airport, he needed someone who could "hit the ground running" and had specific knowledge of the Agency's HR processes. Id.
Pretext
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate by the preponderance of the evidence that the Agency's reasons are a pretext for discrimination. In non-selection cases, pretext may be found where complainant's qualifications are demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Regarding claim 1, Complainant argues that he is more qualified than the selectees for the following reasons: (1) he has a Bachelor of Science in Physics/Math and none of them have a four-year college degree; (2) he has taught a wide range of technical subjects within the Agency and none of them are similarly academically equipped; (3) the scope of his responsibilities when he was a career Naval officer far out-distanced their prior work experiences; (4) his extensive knowledge of TSA procedures puts him way ahead of the others in raw knowledge; and (5) as an investigator in both the Agency and the Navy, he operated at a level that none of them had approached. Complainant's Aff.-1, at 3. Upon review of the record, we find that Complainant has not adduced evidence to show that his qualifications, as they relate to the position in question, are demonstrably superior to those of the selectees. Complainant's educational experience and Navy experience are less relevant in this case, as the vacancy announcement for the position did not include an educational requirement, and the first knowledge, skills and abilities (KSA) requirement pertained to knowledge of Agency and aviation security directives and regulations. ROI-1, at Ex. F14. In addition, we note that Complainant was a Supervisory Transportation Security Officer, SV-1801-G, and all of the selectees were Transportation Security Managers, SV-1801-H, whose duties included managing someone in Complainant's position. ROI-1, Ex. 20, at 2; Ex. 21, at 6; Ex. 22, at 5; Ex. 23, at 5.
Regarding claim 2, Complainant argues that SO1 allowed the Certificate of Eligibles to expire to avoid promoting him and then re-advertised the position after his retirement. Complainant's Aff.-1, at 6. Complainant argues that, because he made SO1 aware of his pending retirement by an e-mail changing his original retirement date of June 30, 2007, to September 1, 2007, SO1 had ample time to inform him of the intention to re-advertise the position. Id. We are not persuaded by Complainant's argument. The record shows that Complainant was ranked sixteenth among the candidates after the interview; thus, it is far from certain that he would have been selected had the certificate not expired. ROI-1, Ex. F39, at 1-2. In addition, we note SO1's testimony that he had not kept track of Complainant's retirement status at the time of the selection and would not have routinely received or reviewed such information. ROI-1, Ex. F3, at 8. Finally, we do not agree with Complainant that SO1 had any affirmative obligation to notify Complainant of his intentions to re-advertise the position in the future.
Regarding claim 3, Complainant argues that his non-selection for the program is "illogical" given his successful military career and his achievement of the rank of senior officer. Complainant's Rebuttal-1, at 4. Complainant argues that P2 and P3 lied in their affidavits about his interview performance because they had told him that he was overqualified for the program. Complainant's March 8, 2010 Appeal Brief, at 2. We note, however, that Complainant has failed to provide evidence refuting P2 and P3's affidavit testimony that he did not score well on interpersonal skills and oral communications. In addition, P2 and P3 attested to Complainant's leadership experience, but felt that he was not suited for the program and lacked certain skills. ROI-1, Ex. F10-11. For example, P2 attested, "I remember thinking that this applicant might benefit from the executive management development program10 but I personally did not believe that he needed to learn mid-level management as he'd 'been there, done that' and basically that was what he was telling us." ROI-1, Ex. F10, at 3. P3 also attested that Complainant had a great background in leadership but lacked people skills. ROI-1, Ex. F11, at 2.
Regarding claim 4, Complainant argues that he has demonstrated numerous times at the Agency that he could "hit the ground running" and cited examples such as working at the help desk, leading the Katrina Relief team, and designing a program that involved all the Orlando employees. Complainant's Rebuttal-2, at 3. In addition, Complainant argues that the vetting panel failed to credit his HR experience with the Navy. Complainant's March 8, 2010 Appeal Brief, at 2. Further, Complainant argues that P6 and P7 had worked with the selectee on a daily basis for the past several years. Id. Finally, Complainant argues that he should have qualified for an interview because he had received top scores from the interview panel for an identical position advertised under TSA-MCO-2006-05. Id. Upon review of the record, we find that Complainant has not adduced evidence to show that his qualifications, as they relate to the position, are demonstrably superior to those of the selectee. Although Complainant's resume detailed his HR-related responsibilities in positions with the Agency and in the Navy, the selectee had a few years of actual experience as an HR Assistant (Detailed) with the Agency and had received HR Specialist (Part 1-4) training from the Agency in 2006-2007. ROI-2, at Ex. F14-15. Although Complainant's resume may have demonstrated his ability to "hit the ground running," we find that SO2's use of the phrase referred to the selectee's ability to seamlessly transition into the HR Specialist position, given her experience as an HR Assistant at the Agency. To the extent that Complainant is asserting that preselection occurred, we note that we have held that preselection, per se, does not establish discrimination when it is based on qualifications of the selected individual and not some prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Although Complainant attempts to compare the results of the instant selection to the selection in TSA-MCO-2006-05, we note that the comparison is inaccurate because the previous selection did not contain a vetting panel and involved different selecting officials and candidates. ROI-2, at Ex. F3.
Generally, Complainant argues that the difference in his "blind" rankings by outside individuals and his rankings by local panels demonstrates a pattern of reprisal. Complainant's March 8, 2010 Appeal Brief, at 1. In addition, Complainant argues that the Agency has a pattern of not promoting employees who are older or have engaged in EEO activities, and believes that those involved in his non-selections were just "following the Company line." Complainant's Aff.-1, at 3-4, 6. Finally, Complainant argues that Agency employee surveys show that the work environment in Orlando is hostile and retaliatory. Complainant's March 8, 2010 Appeal Brief, at 1; Complainant's April 1, 2010 Appeal Brief, at 1-2. We are not convinced by Complainant's arguments. We note that a comparison of Complainant's rankings by outside evalutors and the ratings panels would be inapposite, as the former rankings were based solely on his written applications, while the latter rankings were generally based on interviews. ROI-1, at Ex. F17, F19, F25, F28, F37, F39. Beyond his bare assertions, Complainant has not produced evidence of an Agency-wide pattern of age or reprisal discrimination.
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 decision.
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.
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 20, 2010
Date
1 The report of investigation and Complainant's affidavit in Agency No. HS-07-TSA-002319 will be referred to as ROI-1 and Complainant's Aff.-1, respectively. The report of investigation and Complainant's affidavit in Agency No. HS-07-TSA-001486 will be referred to as ROI-2 and Complainant's Aff.-2, respectively.
2 Unless otherwise specified, all the management officials referred to in this decision work in the Agency's Orlando International Airport.
3 Nineteen other candidates received a written application score of 100. ROI-1, at Ex. F38.
4 Eighteen other candidates received a written application score of 100. ROI-1, at Ex. F25.
5 Five candidates received a written application score higher than 93.6. ROI-1, at Ex. F17. Four other candidates received a written application score of 93.6. Id.
6 Three candidates received a written application score higher than 99.5. ROI-2, at Ex. F-10.
7 Although interviews had not yet taken place at the time the vetting panel convened, the vetting panel assumed that all of the candidates would have received the maximum score on the interview and gave each candidate a score of 30 for the interview for rating purposes. ROI-2, Ex. F4, at 2; Ex. 13.
8 The Agency's decision did not analyze whether Complainant established a prima facie case of age or reprisal discrimination. FAD, at 3.
9 The Certificate of Eligibles was originally scheduled to expire on May 17, 2007. ROI-1, at Ex. F38.
10 P2 attested that the panel discussed how some of the applicants (such as Complainant but not him specifically) were not able to apply for the Senior Level Development Program because of their low band, but appeared overqualified for the Mid-Level Leadership Development Program. ROI-1, Ex. F10, at 4.
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0120101625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101625