EEOC Appeal 2020001229

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Taylor G.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001229
Agency No. 200J-0330-2018-104388
DECISION
On November 16, 2019, 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
November 	5, 	2019, 	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.
ISSUES PRESENTED
The issues presented are: (1) whether the record is adequately developed; and (2) whether
preponderant 	evidence 	in 	the 	record 	establishes 	that 	Complainant 	was 	subjected 	to
discrimination based on age when he was not selected for a Vocational Rehabilitation Counselor
position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-0101-11
Vocational Rehabilitation Counselor at the Agency’s Veterans Health Administration (VHA)
Middleton Memorial Veterans Hospital facility in Madison, Wisconsin. Complainant was 57
years old at the time of events giving rise to this complaint.
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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In early 2018, Complainant expressed his interest in a GS-0101-11/12 Vocational Rehabilitation
Counselor position at the Agency’s Veterans Benefit Administration (VBA) facility in Madison.2
The selecting official for the position was the Milwaukee Regional Vocational Rehabilitation and
Employment Officer (S1). According to S1, there was not a competitive selection process to hire
a Vocational Rehabilitation Counselor. S1 stated that, because the Agency was short-staffed after
a Vocational Rehabilitation Counselor left, he and a Supervisory Vocational Rehabilitation
Counselor (S2) decided to try to quickly fill a position using noncompetitive direct hire
procedures. According to S1, he was not sure whether the Agency would have the budget to hire
anyone at the time. Complainant stated that he interviewed for the position with S1, S2, and an
Employment Coordinator (S3). S1 denied that he interviewed Complainant, characterizing their
interaction as an informal meet and greet to discuss his interest in a potential Vocational
Rehabilitation Counselor position. According to S1, he had informal meet and greets with two or
three individuals who were interested in a position.
S1 stated that he hired a candidate (C1) for a Vocational Rehabilitation Counselor position, using
the noncompetitive, direct-hire Schedule A authority for individuals with disabilities. According
to the record, C1 was 41 years old at the time of her selection. S1 averred that C1 was well-
qualified because of her experience in state and county government, including 12 years of case
management experience and 13 years of working with people with disabilities. S1 indicated that,
during a meet and greet, C1 displayed better people skills and communication skills than
Complainant had during his meet and greet. According to S1, Complainant’s answers to
questions during the meet and greet were vague, whereas C1 provided detailed responses with
examples.
Complainant averred that C1 was less qualified than he was for the position, noting that she had
10 years less of experience in the vocational counseling field than he did. Complainant’s resume
stated that he had worked as a Vocational Rehabilitation Counselor since February 2003.
According to C1’s resume, since May 2006, she worked for three non-federal agencies assisting
individuals 	with 	disabilities 	with 	vocational 	case 	management, 	vocational 	rehabilitation
counseling, and public benefits. According to Complainant, the reason he was not selected was
his age. Complainant alleged that, in the five years leading up to his nonselection, he noticed a
pattern of the Milwaukee Regional Office hiring younger, master’s degree-level vocational
counselors, who appeared to be younger than 40. According to the record, both Complainant and
C1 have master’s degrees in Vocational Rehabilitation.
On 	August 	12, 	2018, 	Complainant 	filed 	an 	EEO 	complaint 	alleging 	that 	the 	Agency
discriminated against him on the basis of age (57 years old) when, on May 14, 2018, he learned
that he was not selected for a Vocational Rehabilitation Counselor position with the VBA in
Madison.
2 The VBA is a separate subcomponent of the Agency than the VHA, where Complainant
worked at the time of his nonselection.

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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). 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that, when he requested a final decision, he asked the Agency
to conduct additional investigation before issuing the final decision. According to Complainant,
the investigation performed by the Agency was inadequate. Complainant alleges that S1 hired
four non-supervisory counselors in 2017, three of whom were age 35 or younger at the time of
hire, with the average age at time of hire being 37.5 years old. Complainant contends that using
direct hire authority does not give the Agency license to discriminate and notes that he is an
individual with a disability who could have been hired through Schedule A. Complainant
contends that he was more qualified for the position than C1 and that S1’s real reason for not
hiring him was his age.
In response to Complainant’s appeal, the Agency contends that Complainant did not establish
that its legitimate, nondiscriminatory reason for not hiring Complainant was a pretext for age-
based animus. The Agency requests that its final decision finding no discrimination be affirmed.
ANALYSIS AND FINDINGS
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 Chapter 9, § VI.A. (Aug. 5, 2015) (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”).
Adequacy of Record
Complainant contends that the Agency did not conduct an adequate investigation. EEOC
Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and
appropriate factual record upon which to make findings on the claims raised in the complaint.
One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw
conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-
110, at Chap. 6, § IV.B.

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An investigation must include “a thorough review of the circumstances under which the alleged
discrimination occurred; the treatment of members of the Complainant's group as compared with
the treatment of similarly situated employees...and any policies and/or practices that may
constitute or appear to constitute discrimination, even though they have not been expressly cited
by the complainant.” Id. at § IV.C. Also, an investigator must identify and obtain “all relevant
evidence from all sources regardless of how it may affect the outcome.” Id. at § VI.D.
As Complainant notes, the Agency redacted the dates of employment on the copies of his resume
and C1’s resume in the investigative record. Without these dates, the finder of fact is unable to
compare Complainant’s qualifications to those of the selectee, C1. The Commission requested
unredacted copies of Complainant and C1’s resumes from the Agency. Upon review, the
Commission finds that the investigation was adequate and that the record, as supplemented by
the unredacted resumes, is sufficiently thorough for the fact finder to address the ultimate issue
of whether discrimination occurred.
Disparate Treatment
Complainant alleged that he was subjected to age-based discrimination when he was not hired
for the Vocational Rehabilitation Counselor position. To prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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). The prima facie inquiry may be dispensed with in this case, however,
since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. 	See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 	To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by
showing that his qualifications are “plainly superior” to those of the selectee. 	See Patterson v.
Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
The Agency’s legitimate, nondiscriminatory explanation for hiring C1 for the Vocational
Rehabilitation Counselor position was that she had case management experience and experience
working with people with disabilities and that she displayed better communication skills and
people skills during the informal meet and greet than Complainant. As evidence of pretext,
Complainant contends that he was more qualified than C1. Although Complainant worked for
the VHA and had more years of vocational rehabilitation counseling experience than C1, we find
that the preponderance of the evidence in the record does not establish that Complainant’s
qualifications were plainly superior to those of the selectee. As further evidence of pretext,
Complainant contends that S1 had a history of hiring younger, master’s degree level counselors.

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However, the record shows that both C1 and Complainant held master’s degrees in Vocational
Rehabilitation. We find that Complainant has not established by preponderant evidence in the
record that the Agency’s proffered legitimate, nondiscriminatory reason for not hiring him was a
pretext designed to mask 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 	decision 	finding 	no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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.
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, 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).

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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. 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
November 3, 2020
Date