EEOC Appeal 2020001143

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerald L.,1
Complainant,
v.
Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 2020001143
Hearing No. 570-2017-01170X
Agency No. HS-ICE-26753-2016
DECISION
On November 15, 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
October 18, 2019 final decision concerning an 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.
BACKGROUND
During the period at issue Complainant worked as a Detention and Deportation Officer, Grade
GS-14, in the Enforcement and Removal Operations of the Domestic Operations Division, at the
Agency’s Headquarters in Washington, District of Columbia.
On August 10, 2016, Complainant filed a formal complaint alleging that the Agency discriminated
against him based on age (49) when:
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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On May 18, 2016, Complainant learned that he was not selected for
the position of Supervisory Detention and Deportation Officer, GS-
1801-14, 	under 	Vacancy 	Announcement 	Number 	LAG-FMI-
1622329-MB-081 within the Miami Field Office.
After an investigation, 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 (AJ).
Complainant requested a hearing but the AJ denied Complainant’s hearing request and AJ
remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed.
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).
EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”).
We consider Complainant’s discriminatory non-selection claim in accordance with the U.S.
Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). First, Complainant had to establish a prima facie case by demonstrating he was
subjected to adverse employment action under circumstances that would support his inferences of
discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The second burden
was on the Agency to articulate legitimate and nondiscriminatory reasons for its actions at issue.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). If the Agency articulated a legitimate,
nondiscriminatory reason for its actions, then our inquiry proceeds to the third step—whether
Complainant has shown by a preponderance of evidence that the Agency’s reasons were pretexts
to mask discriminatory motivations. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133
(2000); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo that Complainant established a prima facie case of age discrimination, we
nevertheless determine that the Agency has articulated nondiscriminatory reason for its non-
selection decision. Here, the Agency explained that, Complainant was not among the top 3 among
a total of 25 applicants or the supervisory positions in the Miami Field Office. 	The selection
process included a review of resumes and a telephone interview. 	Complainant’s resume rating
score 22.83 ranked him ninth among those competing.

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For the interview, Complainant and sixteen other applicants2 answered nine standardized questions
as part of the telephone interview. Two Deputy Field Office Directors GS-15s (age 48 and age
42) from other and the Enforcement and Removal unit chief from Agency headquarters (age 45)
rated the applicants’ answers. These interview panel members reported the candidate scores to the
selection official, who was the assistant director for the Miami Field Office (age 54). The record
revealed Complainant received a consolidated average score of 11.00 on the interview component.
The Agency’s first selectee scored 41.66 on the interview. The Agency’s second selectee scored
37.33 on the interview. The Agency’s third selectee scored 33.33 on the interview. We find the
Agency’s choice to select the top three interview scores was a non-discriminatory one.
We note in particular that the Agency determined that the responses of the selectees were detailed,
while Complainant’s responses were not, and were often rated as “Barely Acceptable.” 	The
Agency determined that throughout the interview, Complainant’s responses did not address the
question posed and/or provided inadequate detail of his understanding of the requirements of the
subject position. One interviewer specifically determined that the selectees gave responses from
the perspective of a second-line manager, but Complainant did not do so. The panelists noted that
Complainant did not illustrate an ability to engage stakeholders, and one scenario question
reflected that Complainant lacked the awareness of what a second-line supervisor should do in
such a scenario, in contrast to the responses of the selectees.
Finally, we note that the Agency properly dismissed veterans preference status, as well as
“geographic location” as bases not within the purview of the Commission.
CONCLUSION
We AFFIRM the Agency’s final decision finding that Complainant did not prove discrimination
as alleged.
2 Apparently, one applicant chose to withdraw from consideration by declining to be interviewed.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. 29 C.F.R. § 1614.405; EEO MD-110 for 29
C.F.R. Part 1614, at Ch. 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. 	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). 	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. 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
September 30, 2020
Date