[Redacted], Mario L., 1 Complainant,v.Lauren M. McFerran, Chairman, National Labor Relations Board, Agency.

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021003992 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mario L.,1 Complainant, v. Lauren M. McFerran, Chairman, National Labor Relations Board, Agency. Appeal No. 2021003992 Hearing No. 520-2020-00300X Agency No. NYJ-17-07 DECISION On July 7, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 7, 2021, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Law Judge at the Social Security Administration. On December 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (63) when he was not selected for one of two Administrative Law Judge openings in New York City, New York. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 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. 2021003992 2 Complainant initially requested a hearing with an AJ, but the request was dismissed without prejudice on December 6, 2018. On March 10, 2020, Complainant submitted an additional request. On June 24, 2020, the Agency timely filed a Motion for Summary Judgment (Motion). Despite Complainant’s reply motions, on April 29, 2021, the AJ issued a Decision and Order Dismissing Complaint granting the Agency's Motion. After a thorough, comprehensive, and independent review of the evidence, including evidence provided during record supplementation and dispositive motion briefing, the AJ adopted and incorporated the Agency's Undisputed Material Facts. The AJ found that there were no outstanding issues of material fact in dispute and that Complainant failed to proffer sufficient evidence that the Agency’s articulated reasons for the non-selection were pretext. 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. On appeal, Complainant argues that the Agency falsely declared that even if the Selectee was not chosen another higher ranked candidate (Candidate) would have been. He claims that the Candidate was not considered for the vacancy and did not apply for the vacancy.2 As such, Complainant believes this supports his contention that the Agency engaged in pretextual discrimination. Complainant also argues that he did in fact participate in administrative hearings after 2007 and served as a mentor and trial supervisor. In response, the Agency reiterates its arguments for summary judgment. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9 § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). The record reflects that the Selecting Officials chose from the candidates based on the best writing samples, judicial temperament, relevant experience, and endorsement of high-level Agency management. As to Complainant’s non-selection, the Agency shared that Complainant’s writing samples were not impressive, his temperament was not well-suited to the position, his recent work history was largely niche, and his work was not regarded as highly as other candidates. As stated by the AJ in their decision, at the heart of Complainant’s non-selection was not his eligibility for the position itself, but his perceived lacking qualifications. 2 Complainant argues that the Candidate applied for a related vacancy announcement in Washington, D.C., not New York City. 2021003992 3 Complainant has not, on appeal or throughout the discovery process, highlighted any evidence which would cast doubt on the legitimacy of the Agency’s articulated reasons for his non- selection. Furthermore, Complainant has not pointed to any genuine disputes of material facts which would undermine the issuance of the AJ’s summary judgment decision. Upon review of the AJ’s summary judgment decision, the arguments on appeal, and the record as a whole, we find that the AJ decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. Accordingly, the AJ properly issued a decision without a hearing. We also agree that the AJ’s decision correctly identified the legal standards for Complainant to prove that she was subjected to discrimination based on age. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021003992 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003992 5 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 September 12, 2022 Date