EEOC Appeal 2020000406

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virgil A.,1
Complainant,
v.
Anne Marie Buerkle,
Acting Chairman,
Consumer Product Safety Commission,
Agency.
Appeal No. 2020000406
Agency No. CPSC-EEO-19-001
DECISION
On October 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 26, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Compliance Investigator, GS-13, at the
Agency’s Office of Import Surveillance (OIS) in Bayamon, Puerto Rico.
On February 25, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him on the basis of national origin (Hispanic) when:
on October 9, 2018, he learned that he was not selected for a GS-14 Supervisory
Compliance Investigator (“SCI”) position advertised under job vacancy announcement
number 2800EXIS-2018-001.
After the investigation of the claim, 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.
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 accordance with Complainant’s request, the Agency issued a final decision on September 29,
2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANAYLSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. 	See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
Complainant has worked as Compliance Investigator, GS-13, at the Agency’s OIS facility in
Bayamon, Puerto Rico. The Supervisory Compliance Investigator was Complainant’s immediate
supervisor, and the Deputy Director of the Office of Import Surveillance was his second-level
supervisor.
In August 2018, Complainant applied for the GS-14 Supervisory Compliance Investigator (“SCI”)
position advertised by the Agency. The Deputy Director of OIS was the selecting official. A panel
of other management officials was convened to interview the applicants for the subject position.
Ten applicants were referred to the interview panel. 	However, one applicant withdrew the
application. There were two interview panels.

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The first interview panel of three Agency management officials consisting of Complainant’s
supervisor, Supervisory Compliance Investigator and the International Trade Specialist, conducted
the first round of interviews on or around September 11, 2018 through September 14, 2018. Based
on the first round of interviews, Complainant was not offered a second interview.
The second interview panel consisting of the selecting official and the Director of OIS conducted
interviews on or around September 26, 2018 through September 28, 2018. 	Following the
interviews, the selecting official and the Director had a discussion concerning the three second
round applicants. Thereafter, the selecting official chose the selectee for the subject position based
on his investigative experience.
Complainant’s supervisor (Caucasian) was part of the first interview panel. He explained that the
panel formulated a list of about nine interview questions based on an interview template…”we
asked all the applicants the interview questions.” 	The supervisor stated that the panel then
evaluated the applicants “based on our knowledge of them because I believe all but one of the
interviewees (unnamed) worked in our office.” He stated that he ranked three applicants based on
their overall interview answers: (1) a named female Compliance Investigator (“Compliance
Investigator 1”), (2) selectee, and (3) a named male Compliance Investigator (“Compliance
Investigator 2”).
The International Trade Specialist (Caucasian) stated that he was part of the first interview panel.
After interviewing the applicants, he ranked three applicants as follows: (1) Compliance
Investigator 2, (2) Compliance Investigator 1, and (3) a named male Compliance Investigator. He
stated that he did not recommend Complainant for the second round of interviews “because he
performed poorly during his interview. 	For example, Complainant provided short, abrupt
responses to the interview questions. Also, the Complainant only asked one question, and it was
not about the Supervisory Compliance Investigator position at the end of the interview. 	The
Complainant did not seem very interested in the position.”
The Director (Caucasian) stated that following the interviews, he and the selecting official had a
discussion regarding the three applicants. 	He explained that the selecting official selected the
selectee for the subject position because he “is a very experienced Compliance Investigator and
has been with the office since it was created in 2008. [Selectee] has long-term success in building
the Port of Los Angeles, California import program. [Selectee] trains and mentors employees in
our office and in Customs and Border Protection. [Selectee] handles high-pressure work issues
well and resolve these quickly.”
The selecting official (Caucasian) stated that she asked the first interview panel members to
provide her with their top three first round applicants. After receiving the panel member’s lists,
she gave one point to each of the top three applicants on the supervisor and International Trade
Specialist’s lists. She stated that because the Supervisory Compliance Investigator provided two
lists, she gave each of the top three applicants on each list 0.5 points and then she added “the total
number of points for these candidates. 	Based on those totals, I recommended the top three
candidates for the second round of interviews.

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The top three applicants based on number of points were (1) [selectee], (2) [Compliance
Investigator 1], and (3) [Compliance Investigator 2]. On September 21, 2018, I emailed [Director]
a list of the top three applicants based on that scoring.”
Further, the selecting official stated that she made her decision based on the strength of the three
applicants’ interviews and “their experience levels. 	I selected [selectee] for the Supervisory
Compliance Investigator position in part because of his investigative experience with our office.
[Selectee] has been at the office since it was created in 2008. [Selectee] is a proven leader and
mentor.” Moreover, the selecting official stated that Complainant’s national origin was not a factor
in her decision to select the selectee for the subject position.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these legitimate proffered reasons for the selection decisions made were a pretext
masking unlawful national origin discrimination. Complainant has not shown that the alleged
disparities in qualifications between him and the selectees were “of such weight and significance
that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees]
over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004);
see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). 	While Complainant
appears to have had a distinguished career as a Compliance Investigator, he did not establish that
his qualifications were superior to those of the selectee for the position in question.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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. 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

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(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. See 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). 	See 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. 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.

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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 14, 2020
Date