U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felisha A.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120162314 Hearing No. 451-2014-00037X Agency No. HS-CBP-01255-2013 DECISION 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 9, 2016, final decision concerning her equal employment opportunity (EEO) complaint 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. For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not prove that she was subjected to unlawful discrimination when the Agency did not select her for a Supervisory Customs and Border Protection Officer position. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12 Customs and Border Protection Officer (CBPO) at the Agency's Presidio Port of Entry (POE) facility in Presidio, Texas. Complainant had been in this position since April 2003. She mainly inspected and controlled travelers, conveyances, vehicles, and baggage upon entry to/exit of the United States. Additionally, Complainant performed collateral duties as a Field Training Officer, Safety Office, Local Property Officer, Safety Control Officer, Port Statistician, New Employee Orientation Officer, and Purchase Card Holder. Complainant also served as an Acting Customers and Border Protection Supervisor from April 2007 through June 2007. Complainant previously served as a Senior District Parole Officer from September 1990 until June 2000 for the Texas Department of Criminal Justice's Board of Pardons and Parole. . In June 2012, the Agency announced two Supervisory Customs and Border Protection Officer (SCBPO) vacancies. Complainant applied for the position. In August 2012, the Acting Port Director (APD) recommended Complainant and another female applicant born in 1962 (C1) for the two SCPBO vacancies. However, Complainant was not selected for the position by the Director of Field Operations (DFO). Instead, DFO selected C1 for the position, but C1 declined the position. The Agency re-announced the SCBPO vacancies, and Complainant reapplied. In December 2012, Complainant was recommended by the Port Director (PD1) for the position, along with two male applicants. However, DFO did not make a selection at that time. In March or April 2013, PD1 was asked to submit only two recommendations for the position, and PD1 responded by recommending two males born in 1989 and 1965 (C2 and C3, respectively) for the position. The DFO subsequently selected C2 and C3 for the position, but not Complainant. On June 6, 2013, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), age (born in 1961), and in reprisal for prior protected EEO activity when in or about April 2013, the Agency did not select her for a GS-13 Supervisory Customs and Border Protection Officer position. In an investigative statement, Complainant stated that she believed that she was qualified for the Supervisory Customs and Border Protection Officer position because she performed collateral duties that provided her with supervisory experience. Complainant further stated that she believed that both male selectees were groomed to fill the vacancies. Complainant also stated that she has a degree in Criminal Justice; 10 years of supervisory experience as a Senior District Parole Officer with the Texas Board of Pardons and Parole; and 10 years of experience with the Agency. The Port Director (PD1)2 stated he was Complainant's third-line supervisor, and he began serving as Port Director in November 2012. PD1 stated that in August 2012, the ADP recommended Complainant and C1 for the positions, but Complainant was not selected, and C1 was selected but declined the position. PD1 further stated that in December 2012, he recommended Complainant and two male applicants for the position. He stated that his recommendation was sent to DFO in writing, which he believed was routed through the Assistant DFO. PD1 stated that DFO did not make a decision at that time, but he was unaware of why DFO did not make a selection. PD1 also stated that in or about early March 2013, the Assistant DFO asked him to submit only two recommendations to fill the two positions, and PD1 chose the two candidates with the two highest rankings on the Merit Promotion Certificate of Eligibles (Certificate), a male born in 1989 (C2), and a male born in 1965 (C3). He stated that he relied on the Certificate, the resumes, and his own observation of employee performance to make his recommendations. PD1 stated that based on his experience, he found C2's and C3's "working performance to be above that of Complainant's." Report of Investigation (ROI), p. 100. PD1 stated that Complainant was ranked last on the Certificate. He stated that the Certificate expired in April 2013 and had to be reissued, but the rankings and resumes remained the same. PD1 stated that DFO concurred with his recommendations and selected C2 and C3. ADP3 stated that he was the Acting Port Director from May 2012 until September 2012, and was Complainant's third level supervisor during that time. ADP further stated that he reviewed applications and made recommendations for the SCBPO vacancies based "solely on the applicants' job experience." ROI, p. 125. He stated that the at the time, the Port lacked a manager with immigration expertise/experience, and C1 had such needed experience. ADP stated that in addition to C1, he recommended Complainant for the vacancy. ADP stated that he was unaware of the last time there was a female first-line supervisor at Presidio POE, but there was currently a female second-line supervisor assigned to POE. DFO4 stated that he was the selecting official for the position at issue, and that he strictly relied upon the recommendation memorandum from PD1 to make his decision. DFO further stated that he initially only selected C1 for the position, and after C1 declined the position, he asked his Human Resources (HR) staff to re-announce the position. DFO further stated that he was unaware that Complainant also was initially recommended for the position, and he did not receive PD1's memorandum recommending Complainant for the position. When asked by the investigator to explain why he chose C2 and C3 for the position and rejected Complainant, he only responded that the "selection was based on the recommendation of the Port Director." ROI, p. 88. He stated that El Paso Field Office that oversees Presidio POE has a female Assistant Port Director who has been in that position since March 2012. DFO stated that he promoted Complainant in June 2014.5 The Assistant DFO stated that he did not advise PD1 that he should recommend only two individuals for selection, and he had nothing to do with the recommendations or selections for the position. Final Agency Decision After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 her to discrimination as alleged because she did not show that the Agency's explanations were pretext for unlawful discrimination. CONTENTIONS ON APPEAL Neither party presents any arguments on appeal. 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 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"). ANALYSIS AND FINDINGS Disparate Treatment In order to prevail in a disparate treatment claim such as those raised in this complaint, 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 Construction 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, 411 U.S. at 802 n. 13. To do so, the complainant generally must raise an inference of discrimination by showing: 1) she was 40 years of age or older; 2) she was subjected to an adverse employment action; 3) she was qualified for the job; and 4) there is some reason to infer that the action was related to age, such as ageist statements showing bias by the decisionmaker, or evidence that she was treated less favorably than someone substantially younger. While there is no bright line test for what constitutes "substantially younger," that term has generally been applied to age differences of at least five years. See Hammersmith v. Soc. Sec., EEO Appeal No. 01A05922 (Mar. 6, 2002); Burns v. Dept. of the Treasury, EEOC Appeal No. 0120102543 (Oct. 19, 2010). The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this McDonnell Douglas analysis, the Supreme Court has long recognized that after the employer establishes a legitimate nondiscriminatory motive, the plaintiff/complainant "must be afforded 'an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim) (quoting Burdine, 450 U.S. 248, 253). In nonselection cases, complainants can establish pretext by showing that their qualifications are "plainly superior" to those of selectees, and/or by demonstrating inconsistencies in the record. See Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015); see also Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Prima Facie Case In this case, Complainant is a female born in 1961. The Agency deemed Complainant qualified for the position, but selected two males for the position, one of whom is significantly younger than Complainant (born in 1989). The selecting official claimed that he strictly relied upon the recommendation of PD1 in choosing C2 and C3 for the position. PD1 was Complainant's third-line supervisor and worked with her at the same facility. As such, we are persuaded that PD1 was aware of Complainant's sex and that she was over 40 years old. 6 See Alline B. v. Social Security Administration, EEOC Appeal No. 0120162182 (Dec. 8, 2017). Consequently, we find that Complainant established a prima facie case of sex and age discrimination. Burden of Production Because Complainant established a prima facie case of age discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant. The selecting official, DFO, stated that he solely relied upon the recommendation of PD1 to select C2 and C3. PD1 stated that he selected C2 and C3 because they had the two highest promotional assessment test score rankings on the Merit Promotion Certificate of Eligibles. Upon review, we note that the record contains a copy of the Merit Promotion Certificate with names of the applicants. The Agency maintains that the Certificate reflects the ranking of candidates based on their scores on a promotional assessment test, in descending order. C2 is listed first, C3 ninth, and Complainant tenth. However, as acknowledged by the Agency's final decision, the record inexplicably does not contain or specify the candidates' scores. Moreover, the record does not contain any information about the assessment test, how scores were derived, and the relevance of the test to the position at issue. We have held that an agency does not meet its burden of production when it merely states that a complainant was not selected because she received lower scores than selectees, without explaining the specific reasoning for the scores. See Alline B. v. Social Security Administration, EEOC Appeal No. 0120162182 (Dec. 8, 2017) (Agency failed to meet burden production when selecting officials suggested Complainant not selected because he only received 20 out of 40 points on interview); Bakken v. Dep't of Transportation, EEOC Appeal No. 0120093529 (Aug. 8, 2011) (age discrimination found where Agency did not meet burden of production by merely stating that Complainant was not selected because he received a lower score than most of the selectees but did not provide the assessments, bases, or factors behind its decisions); Myles v. Soc. Sec. Admin., EEOC Appeal No. 0120092511 (Feb. 10, 2011) (Agency failed to meet burden of production when it merely said that Complainant was not selected because Review Panel ranked him lower in scoring because this was not a specific, clear, and individualized explanation for Complainant's non-selection). Without evidence in the record that reveals the Complainant's and selectees' specific scores, the manner in which the scores were derived, and the pertinence of the scores to the position at issue, the assertion that Complainant scored/ranked lower than the selectees is meaningless. Moreover, we find it unlikely that the Agency would assert that scores were so critical to its selection decisions here, yet fail to place the applicants' scores and how they were derived in the record. Therefore, the Agency's claim that Complainant's nonselection was based on her score/ranking does not meet the Agency's burden of production. PD1 also stated that he recommended C2 and C3 for the position because he found C2's and C3's "working performance to be above that of Complainant's." However, PD1 merely made this bare assertion, but did not identify any aspect of work performance in which C2 and C3 exceeded Complainant's performance. We find that PD1's explanation was too vague and conclusory, akin to merely asserting that other candidates were "better qualified" than Complainant. We have held that merely stating that a complainant was not selected because she was not as qualified as the selectees does not meet an agency's burden of production to explain a nonselection. See Waterford-Lifschultz v. Dep't of Homeland Security, EEOC Appeal No. 0120113819 (Sep. 20, 2013) (age discrimination found where Agency merely asserted that the selectee was chosen because of "her qualifications, experience, and her degree," which did not meet Agency's burden of production to explain why Complainant was not selected); Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004) (agency failed to meet its burden of production by stating in two short affidavits only that complainant was "not the best qualified for the position"); Wilson v. Dep't. of Veterans Affairs, EEOC Appeal No. 01995055 (Dec. 21, 2001) (agency's conclusory statement that complainant was not best-qualified candidate failed to meet burden to articulate legitimate, non-discriminatory reason for non-selection and thwarted fact-finder's ability to comparatively analyze candidates). In this case, the Agency's vaporous explanations have clearly deprived Complainant of the fair opportunity to comparatively analyze candidates' credentials. Consequently, we find that the Agency's assertion that the selectees' work performance exceeded Complainant's performance also does not meet its burden of production. Based on the above, we find that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's non-selection, and consequently, Complainant was denied a fair opportunity to demonstrate pretext. See Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011); Garcia v. Dep't of Homeland Sec., EEOC Appeal No. 01A32050 (Jan. 7, 2005), request for reconsideration denied, EEOC Request No. 05A50685 (Apr. 26, 2005); Fullman v. U.S. Postal Service, EEOC Request No. 01A31036 (Mar. 18, 2004). Thus, the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of sex and age discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Pretext Further, even if we were to assume arguendo that the Agency provided a legitimate explanation for not selecting Complainant, we find that its explanation is unworthy of belief. In so finding, we reiterate that the Agency has not placed the purported promotional assessment test scores of candidates in the record, although it claims to have mainly relied upon them to make its selections. In fact, when asked by the investigator to provide supporting documentation for the record regarding the rankings/scores of the C2, C3, and Complainant, PD1 stated, "I am not in possession of the ranking document7 other than the one you sent to me. The scores have been removed." Supplemental ROI, p. 285. We also find it suspicious that Complainant was initially recommended with C1 for the position, yet the Agency cannot explain why C1 was offered the position, but Complainant was not. Additionally, we note that Complainant had worked as a Customs and Border Protection Officer for a decade; performed collateral duties as a Field Training Officer, Safety Office, Local Property Officer, Safety Control Officer, Port Statistician, New Employee Orientation Officer, and Purchase Card Holder; served as an Acting Customers and Border Protection Officer Supervisor from April 2007 through June 2007; and previously worked in law enforcement for a decade as a Senior District Parole Officer for the Texas Department of Criminal Justice's Board of Pardons and Parole. In contrast, C2 had been a Customs and Border Protection Officer for only four years and only had two years of previous law enforcement experience beyond his service as a Customs and Border Protection Officer.8 C3 had been a Customs and Border Protection Officer/Immigration Inspector since 2002, but did not have any other previous law enforcement work experience. Neither C2 and C3 had college degrees,9 whereas Complainant had a law enforcement-relevant degree in Criminal Justice. Further, Complainant possessed prior supervisory experience as an Acting Supervisory Customs and Border Protection Officer, whereas C2 and C3 had no supervisory experience with the Agency. Thus, we conclude that Complainant possessed plainly superior qualifications for the position at issue. Therefore, after a thorough review of the record, we conclude that the Agency's explanations are pretext for unlawful discrimination. We find that Complainant proved that the Agency discriminated against her because of her sex and age when it did not select her for a GS-13 Supervisory Customs and Border Protection position.10 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND this matter to the Agency for further actions consistent with this decision and the ORDERS below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall retroactively appoint Complainant to the position of GS-13 Supervisory Customs and Border Protection Officer, effective the date of the appointment of C2 and C3 (reportedly May 5, 2013). 2. The Agency shall pay Complainant appropriate back pay and interest for any pay Complainant lost from the date of her retroactive appointment, until the date she was actually placed into a GS-13 Supervisory Customs and Border Protection Officer position (reportedly July 27, 2014), pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address reference in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages under Title VII incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 120 calendar days after this decision is issued. 4. The Agency shall provide eight (8) hours of in-person EEO training to all selecting, recommending, and responsible management officials in this case, including PD1, DFO, and ADP. The training shall focus on management's responsibilities to prevent age and sex discrimination, as well as reprisal under EEO laws. 5. The Agency shall consider taking appropriate disciplinary action against PD1 and DFO. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If PD1 or DFO have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 6. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Presidio Port of Entry facility located in Presidio, Texas Presidio, Texas copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred under Title VII in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 __6/5/18________________ Date 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. 2 PD1 is a male born in 1955, and who has personally engaged in EEO activity. 3 ADP is a male born in 1963. 4 DFO is a male born in 1950. 5 The record reflects Complainant was promoted to the position of GS-13 Supervisory Customs and Border Protection Officer at Presidio, effective July 27, 2014. 6 Additionally, we note that Complainant's resume was considered during the selection process. Her resume contains her first name, which is a name usually associated with female individuals. Further, her resume indicates that she graduated from college in June 1987, which would indicate that she was likely over 40 years old at the time of her nonselection. 7 Ostensibly, the documentation from the investigator referenced by PD1 is the Certificate of Eligibles found in the ROI. This Certificate does not contain applicant scores, but the Agency maintains candidates are listed in a manner that reflects how they scored on the promotional assessment test. As discussed above, there is no evidence in the record verifying this assertion. 8 C2 also served a volunteer firefighter for Alpine, Texas from 2007 until 2010. 9 We note that on his resume, C3 stated that he "Major[ed]" in Business Administration and "Minor[ed]" in Spanish at Sul Ross State University. However, the resume further stated that "some college coursework [was] completed" without any degree noted, which indicates that he did not receive a degree from this institution. 10 Because we find Complainant was subjected to discrimination based on age and sex under Title VII and the ADEA, we decline to review whether Complainant was also subjected to reprisal because no further relief would be available to Complainant if she were to also prevail on this basis. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162314 12 0120162314