Dominica V.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 31, 2019

0120182366 (E.E.O.C. Oct. 31, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dominica V.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120182366

Hearing No. 410-2017-00310X

Agency Nos. FS-2016-00532; and FS-2017-00666

DECISION

On May 6, 2018, 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
April 25, 2018, 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.2 For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

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 Complainant filed two complaints of discrimination against the Agency. On May 6, 2018, she
filed an appeal regarding Complaint No. FS-2017-0666. The final decision was dated April 25,
2018. The next day, May 7, 2018, the Agency issued its final decision regarding Complaint No.
FS-2016-00532. Because Complainant had already indicated that she also wanted the Commission
to address Complaint No. FS-2016-00532, we are consolidating the two complaints in our decision
herein.

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ISSUES PRESENTED

FS-2016-00532

Whether Agency correctly determined that Complainant was not subjected to discrimination and
harassment based on sex, race, age, and reprisal (prior EEO activity) when:

1. On April 18, 2016, her first line supervisor (S1) conducted an inquiry into her sick leave
and her use of it;
2. On April 6, 2016, she learned she was not selected for the GS-1811-14/15, Special Agent
in Charge (SAC) position, under Vacancy Announcement Number 16-WO-LEI-99429FS-
RB;
3. On an unspecified date, management made budget cuts to the unit she managed; and
4. Other incidents of harassment included, but are not limited to:

a) On January 7, 2016, management made degrading remarks about her work, cast
aspersions about her suitability, and sent notes to leadership and field teams casting a
negative light on her performance;
b) In April 2016, during a leadership meeting and while not feeling well, management
directed her to engage in the session in a manner that did not demonstrate a supportive
or caring environment in the presence of her peers/colleagues;
c) On April 5, 2016, S1 publicly stated, “it was refreshing to have new and young
members on the National Leadership Team (NLT)”;
d) On unspecified dates, management failed to address the ongoing gossip and innuendos
against her;
e) On an unspecified date, management questioned her participation in a weekly
conference call, despite her supervisor’s instruction to attend another meeting; and
f) On an unspecified date, management made statements about an “exit plan” for her to
force her to retire.3

FS-2017-0666

(5) Whether Complainant established that she was subjected to discrimination based on sex
and reprisal (prior EEO activity) when on May 11, 2017, she learned she was not selected
for the FS-1811-14/15, Special Agent in Charge (SAC) position, which was advertised under
Vacancy Announcement Number 17-WO-LEI-335788-G-RB.

3 Claims 3, 4(d), and 4(f) were dismissed but discussed in the Agency’s final decision (FAD).
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Director
for Training, Development and Standards, GS-1801-14 at the Agency’s Forest Services (FS),
Office of Law Enforcement and Investigations (LEI), National Training Academy facility in
Brunswick, Georgia. On May 23, 2016, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (African-American), sex (female), age (52),
and reprisal for prior protected EEO activity as set forth above.

FS-2016-00532

Complainant stated that both S1 and S2, her second level supervisor, were aware of her protected
classes based on longevity of working together; through discussions; and through access to
retirement reports. She also stated that management was aware of her earlier protected activity
because the NLT has a practice of discussing such matters; and that S2 was involved in her prior
EEO claim. S1 denied awareness of her prior EEO activity.

Claim 1

Complainant stated that she emailed S2 informing him she would be out on sick leave and he
approved the leave, but he subsequently emailed her asking if he should change the Monday,
Assistant Director (AD) conference call because Complainant seemed to be out a lot on Mondays.
Complainant asserts that she sent S2 a physician’s note indicating a doctor’s appointment on that
date, adding that S2 incorrectly implied she was out a lot on Mondays; and that S1 asked that S2
inquire into Complainant’s sick leave use because S1 neither liked her nor supported her position.
Complainant contended that two White male coworkers have missed AD conference calls but were
not questioned about their leave. She alleged that S2’s inquiry into her sick leave was based on
her protected classes because there was no other reason for it; and that Agency policy was violated
because an employee can take up to 3 days of sick leave without providing medical documentation.

S2, supported by S1, stated that he was concerned about Complainant’s availability for the weekly
calls because she informed him she was ill the last 3 Mondays. He explained that the purpose of
his email was to ensure the weekly calls were scheduled when Complainant was available; and
that he approved her request to attend the Federal Law Enforcement Training Center (FLETC)
meeting instead of attending the weekly call, adding that it is not uncommon for the call to be
cancelled or delayed at the last minute due to unforeseen circumstances.

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Claim 2

Complainant stated that she applied for the SAC position; that she made the Certification of
Eligibility list (Certification list) but learned in April 2016 that she was not selected as one of the
top three candidates. She alleged that S1, who conducted the interview, was the selecting official
who presented his recommendations to the Executive Leadership Team (ELT). Complainant
contended that she had the skills and abilities, as well as time in-grade required for the position;
however, despite her high interview performance as affirmed by a witness (W1), C1, a white male,
whom she believed was not as qualified as she, was selected for the position.

Complainant explained that although she had not worked in the region at issue, but that she was
familiar with all the requirements of overseeing a region-level program, adding that her experience
made her more qualified than the Selectee. She asserted that she was in charge of a large regional
organization as an Assistant Special Agent in Charge (ASAC) for eight years, an Acting SAC in
two regions, and an Acting Deputy Director for LEI for over ten years. She noted that the C1 was
an ASAC for three years and an Acting SAC for less than 35 days, adding that four white males
and one white female NLT members were selected for SAC positions in regions they have not
worked.

Complainant alleged that no reason was given for her non-selection, asserting that she disputed
the decision to S2, the Director of Civil Rights, and the EEO counselor; that the decision was based
on her age, race and sex because S1 previously hired three younger white males as SACs; and that
S1 stated it was nice to see new young members on the leadership team.

S1, supported by S2 and W1, affirmed Complainant’s statements about the interview and selection
process; however, he indicated that the rating for each candidate was determined by their responses
to a list of questions. He added that he and W1 discussed each candidate’s response after all
interviews were conducted; and that he came up with the best candidate based on the results of the
interview, the review panel recommendations and the opinions of S2, who was also on the panel,
and W1 as to who they thought would be the best fit for the position.

S1 asserted that Complainant was the weakest of all the candidates, explaining that her written and
verbal communication skills were not as high as the other candidates; and that it was apparent that
Complainant lacked knowledge of the law enforcement issues in the region, and did not
demonstrate that she was knowledgeable of significant issues in the region that threaten life and
property. He also explained that C1 demonstrated strong oral and written communication skills
and solid knowledge of law enforcement issues in the region.

Complainant refuted S1’s testimony, asserting that she did identify and discuss significant law
enforcement issues for the region, several of which she listed.

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Claim 3

Complainant alleged that in 2016, S1 cut her unit’s budget by 64% to force her to retire or set her
up to be terminated; that the funds were disbursed to other units and reduced her staff; and that her
remaining staff were overworked and stressed, creating a hostile work environment for her and her
staff.

S2 explained, and S1 affirmed, that budget cuts were made by a now retired LEI Director in 2014
following a Congressional budget reduction for their operations; and that every unit had its budget
cut significantly. He explained that there was also a significant staffing reduction which included
cutting five positions from Complainant’s unit in addition to significant reductions in training,
travel, equipment purchases, and other areas.

Claim 4a

Complainant alleged that S1 spoke negatively about her program openly at a leadership team
meeting, noting that he specifically stated that the leadership team needed people who were
passionate about providing training and they needed to evaluate whether Complainant should
remain as a GS-14 or be downgraded. Complainant asserted that S1 stated that she needed to
improve her teamwork with the SACs; however, she received superior performance ratings before
and after the remarks were made. She alleged that S1 cast aspersions about her suitability and sent
notes to leadership and field teams casting a negative light on her performance.

S1 denied making the alleged remarks. He explained that he stated that management might
consider downgrading the level of the position Complainant held because Complainant’s
counterpart is a GS-13. S1 contended that he was not suggesting reducing Complainant’s grade,
nor was his statement based on Complainant’s performance. He admitted that he did state
management needed someone passionate about training because it is an important characteristic
for that position; however, he did not infer Complainant was not passionate.

S1 also denied knowledge of emails disseminated to the LEI Leadership Team casting
Complainant in a negative light, explaining that there were notes taken at the meeting that were
distributed to the LEI Leadership Team; however, he disagreed with Complainant’s interpretation
of the notes.

Claim 4b

Complainant alleged that she was asked to participate in a session at a leadership meeting despite
being ill; and that she told S2 she was ill, but he insisted she try to participate. Complainant
explained that she was emotionally hurt because she was not selected for the SAC position and in
physical pain, which was attributable to another medical condition; and that the insistence that she
participate in the session was harassment.

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S2, affirmed by S1, asserted that he was not aware Complainant was ill until he approached her
about her lack of participation; that he was under the impression that she was upset about not being
selected for the position, which she had learned the day before. He stated that Complainant
attended the meeting, but her lack of participation was obvious to everyone in attendance and
created a distraction to the group.

Claim 4c

Complainant alleged that S1 stated, “it is refreshing to have new and young members on the NLT,”
contending that S1’s statement was harassment based on her protected classes because she was
older than the three recently hired SACs, all white males in their 40s.

S1, supported by S2, stated that he may have said the word “young” or another word to that effect
in an effort to make the recently selected SAC employees, all younger than him, feel welcome; but
that he only used the word “young” because it described them.

Claim 4d

Complainant asserted that a letter was sent to the Chief of the FS (the Chief) about minorities. He
thereafter requested that a coworker to provide information about employees not following
procedure. She explained that the letter included false statements about her related to performance,
and that she threw a stapler at one of her employees. Complainant stated that management spoke
with the minorities named in the letter to apologize. She contended that she requested management
to do something in response; however, this matter was not properly addressed by management;
and that management’s failure to address the letter was based on race. She asserted that prior
similar instances referencing non-minorities were addressed by a letter sent by the Chief stating
discrimination and/or harassment would not be tolerated.

W2 stated that he was asked to investigate the allegations of misconduct mentioned in the letter
and found the writer did not have all the facts related to the allegations; and that the Agency took
appropriate corrective action in response. He explained that the investigation was limited because
the writer filed a whistleblower claim shortly after disseminating the letter, which prevented him
from receiving a statement from the writer. He added that a detailed response was provided to the
Office of Inspector General (OIG) which carefully described what was confirmed about the
statements made in the letter. W2 also stated that he believes the writer’s SAC spoke with him
letting him know that the release of the letter was not acceptable; and that it was hurtful to the
employees mentioned. W2 asserted that no other actions were taken against the writer.

Claim 4e

Complainant stated that she was required to attend a monthly meeting as the Unit Head, and that
she informed S2 by email of her required attendance, and that she would not attend the weekly AD
conference call occurring on the same day. Complainant stated that S2 did not respond to her
email but asked her why she was not on the call; and that she believed S1 directed S2 to ask.
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She contended that this was harassment because S1 did not treat the younger Caucasian males in
the same manner; and that she felt S1 was targeting her because he wanted her to retire so she
could be replaced with a Caucasian male.

S2 explained that he forgot Complainant would be attending the FLETC meeting; and that S1, who
was on the call, did ask about Complainant’s absence. S1 stated that he was unaware Complainant
had a conflict between the FLETC meeting and the AD conference call and denied questioning her
participation.

Claim 4f

Complainant alleged that during a mediation involving her prior EEO activity, the Agency’s
representative communicated to her that any resolution would have to involve an exit plan for her
to return to Atlanta and retire in 2 months. Complainant contended that the Agency wanted her to
leave because of her protected EEO classes; and that NLT members do not like that she is a strong
supporter of females and minorities at the Agency.

S1 and S2 denied having any knowledge of this issue.

FS-2017-0666

Claim 5

Complainant stated that she applied for the SAC position and made the Certification list; and that
she was interviewed telephonically by a panel consisting of S1 and S3. Complainant added that
there was a recommending panel of three individuals, W1, W2 and W3, all colleagues with whom
she was familiar and who recommended her for the interview. Complainant alleged that In May
2017, S1 informed her that she was not selected for the position and that the Selectee (African
American, male, over 40 years of age, no prior EEO activity) was recommended by the entire
panel. Complainant stated that prior to the posting of the position, W3 told her he supported the
Selectee for the position, indicating it was time for him to be a SAC.

Complainant contended that the Selectee was her subordinate at the FLETC, and that she was more
qualified than him because she has more supervisory and managerial experience and she served as
the ASAC for Law Enforcement operations in Atlanta over a 12-year period. She also asserted
that at times, she worked with the Selectee whom she supervised over a five-year period; and that
she recommended him for the Deputy Assistant Director position after she became the Assistant
Director for Training. Complainant explained that the Selectee has never managed a national level
program; whereas, she was on the NLT longer than anyone else, adding that she has acted in SAC
positions in several regions and served as Acting Deputy Director and Acting Director of LEI in
Washington, DC. Complainant stated that her experience was diverse and progressive to include
positions with increasing responsibility at all levels of the FS-LEI organization; and that she has
worked in the various positions and received superior ratings and awards.

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Complainant also contended that the Selectee’s experience did not measure up to nor did it exceed
hers. She stated that S1 informed her that the Selectee was supported by many people and the
selection was based on the reports submitted by the review and interview panels. Complainant
also stated that W3 was the Selectee’s first-line supervisor and the Selectee has worked with W1
as well, alleging that the Selectee’s relationships gave him an unfair advantage over other
candidates including herself, and that he was promoted because of his gender.

Complainant alleged that her protected classes were factors considered in the panel’s decision,
explaining that at an NLT meeting, it was stated several times how refreshing it was to have new,
young employees on the leadership team; and that it is apparent she does not fit the profile of what
is now desired on the team. Complainant contended that LEI does not have respect for women,
especially African American women, in law enforcement and this is reflected in its hiring trends;
and that due to her prior EEO activities and her gender, she has been “blackballed” by the Agency.
Complainant alleged that a resolving official told her the Agency wants an exit plan from her; and
that she applied for the SAC position three times, the Deputy Director position in Washington, and
the SAC position at issue in claim 2 but was not hired for any of these positions. She noted that
males were hired in each case.

S1 asserted that W1 and W3 independently reviewed and evaluated all candidates’ applications,
explaining that applicants were evaluated based on their narrative responses to the evaluation
criteria. He added that each subject matter expert independently provided their top three candidates
to him; and that he and S2 interviewed the three candidates, including one candidate within
Complainant’s age group, and agreed the Selectee was the best candidate for the position based on
his responses to the interview questions, and his demonstrated skills and abilities vital to being
successful in the position. He also added that the Selectee has worked at every level of the LEI
organization and established a reputation as a dedicated, knowledgeable employee with a strong
work ethic; and that the Selectee was known as a leader who listened, was fair, remained calm in
difficult or challenging situations, and who got the most out of his employees.

He explained that, in contrast, Complainant had challenges in the areas of working in a team
environment with members of the LEI Leadership team and maintaining harmonious relationships
with her subordinates. He added that, as her supervisor, he has dealt with numerous conflicts
between Complainant and other members of LEI leadership and her subordinates, asserting that
he told Complainant that the Selectee was the best candidate due to his communication skills,
leadership skills, ability to work in a team environment, ability to build relationships with peers
and subordinates, and his ability to collaborate, both internally and externally. He acknowledged
that Complainant was a good candidate for the position but asserted that the Selectee was the best
candidate. He also stated that the selection process was fair and consistent with Agency policy
and procedure, adding that Complainant’s protected classes were not factors in her not being
selected for the position; and that he and Complainant are close in age, he is also African American,
and stated that sex was never considered, only the qualifications of the applicants.

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S1 further stated that he values women in the LEI workforce and has recruited, selected, supported,
and promoted women throughout his entire career, adding that he values diversity and is committed
to developing a workforce that reflects the diversity in society. S1 asserted that Complainant is a
valued member of the LEI organization and she brings a lot of outstanding qualities to the table,
particularly as it relates to organizational skills and the development of policies and procedures.
S2, affirmed by the witnesses, supported S1’s testimony.

In rebuttal, Complainant asserted that neither the NLT nor LEI is diverse, explaining that LEI has
a workforce of 79% male, 20% female, 61% white male, 15% Caucasian female, 6% Hispanic
male, 2% Hispanic female, 4% African American male, and 2% African American female. She
asserted that S1’s testimony that she was not a team player was an excuse, contending that team
work is necessary to execute the duties of her current position. Complainant also stated that S1’s
assertions are not documented on any of her performance evaluations; and that he has not hired
any African-American females, and no one with prior EEO activity.

At the conclusion of 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 (AJ). 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.

CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, reiterates her allegations.

The Agency, among other things, requests that the Commission affirm its FADs.

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

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).
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She must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, sex, age, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions in claims 1, 2, 3, and 5. Regarding Claim 1 and S2’s questioning of
Complainant’s sick leave use, management explained, and Complainant indicated, that S2 only
asked her if a change to the weekly AD conference call was needed to accommodate her.
Regarding the non-selection in Claim 2, although Complainant was qualified for the position, she
did not make the ELT list; and management explained that based on her interview responses,
Complainant was determined to not be the best qualified candidate. Regarding Claim 3,
management explained that across-the-board Congressional budget cuts were made in 2014, two
years before she filed her complaint, and that neither Complainant nor her unit were singled out or
targeted for operational budget cuts or staffing reductions as alleged. Finally, regarding Claim 5,
management explained that though Complainant was qualified for the SAC position, the Selectee
was the best candidate based on his responses to the interview questions and demonstrated desired
competencies which, S1 pointed out, Complainant lacked. In this regard, S1 stated that he has
dealt with numerous conflicts between Complainant and other members of LEI leadership and her
subordinates.

In an effort to show pretext, we specifically note Complainant’s contention that her years of
supervisory and managerial experience far exceeded those of both C1 (Claim 2), and the Selectee
(Claim 5). She also maintained that the Selectee’s relationships with management gave him an
unfair advantage over other candidates; that management publicly remarked that it was refreshing
to have new young employees on the leadership team; and that W3, one of the colleagues who
recommended her for the interview and with whom she was familiar, informed her that it was time
for the Selectee, whom he supported, to be a SAC. Complainant also argued that she has been
passed over several times in order for the Agency to hire male candidates, contending that LEI
does not have respect for African American women in law enforcement; and that S1’s rationale
that she is not a team player, which is undocumented in any of her performance evaluations, is an
excuse.

Management, however, did not dispute that Complainant was qualified to be a SAC. In fact, S1
stated how valuable and experienced she was. Rather, they explained that she was not the best
candidate for the position. We have determined that in non-selection cases, pretext may be found
where an employee’s qualifications are demonstrably superior to those of the selectee’s. Bauer v.
Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981).
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In the instant complaint, Complainant has simply not established that she was more qualified than
C1 and the Selectee. We have repeatedly held that mere years of service, or length of service, does
not necessarily make an individual more qualified to meet the needs of an organization. Kenyatta
S. v. Dep’t of Homeland Security, EEOC Appeal No. 0120161689 (Sept. 21, 2017); Collins v.
Dep’t of the Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004). Neither does years of service
automatically make an individual more qualified. Ford v. Dep’t of Health and Human Services,
EEOC Appeal No. 01913521 (Dec. 19, 1991). The Commission will not substitute our judgment
for the judgment of selecting officials familiar with the present and future needs of their facility
and therefore in a better position to judge the respective merits of each candidate, unless other facts
suggest that proscribed considerations entered into the decision-making process. See Williams v.
Dep’t of Education, EEOC Request No. 05970561 (Aug. 6. 1998).4

Regarding Claims 1 and 3, we find no persuasive evidence of pretext or which demonstrate that
the management’s actions were motivated by discriminatory animus.

Harassment

At the outset, we note that under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), Complainant’s allegations of a hostile work environment in Claims 1, 2, 3, and 5
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that any of these actions taken by the Agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

Claims 4a, 4b, 4c, 4d and 4f

Complainant did not demonstrate by a preponderance of the evidence that these alleged incidents
of harassment occurred because of her sex, race, age or her prior EEO activity. Furthermore, as
the Commission has repeatedly held, the discrimination laws are not civility codes. Rather, they
forbid “only behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant
also failed to describe any severe or pervasive conduct that would constitute a work environment
so unbearable that the terms and conditions of his employment were altered or otherwise
negatively impacted. The incidents discussed here appear, for the most part, to be normal work-
related interactions found in the workplace concerning supervision and the assignment of duties.

4 Regarding Complainant’s claim that the Selectee was preselected, the Commission notes that
even if preselection occurred, it would not be unlawful unless Complainant can show that the
preselection was driven by discriminatory animus. See Nickens v. Nat’l Aeronautics Space
Admin., EEOC Request No. 05950329 (Feb. 23, 1996). Preselection, per se, does not establish
discrimination when it is based on the qualifications of the selected individual and not some
prohibited basis. McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994).

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Finally, regarding Complainant’s contentions that an Agency representative requested that she
provide an exit plan, during mediation efforts involving her prior EEO activity, we find no
evidence that this comment was based on discriminatory animus. Moreover, we note that nothing
said or done during attempts to resolve a complaint through mediation can be made the subject of
an EEO complaint. See EEOC Management Directive 110 at 3-9 (Aug. 5, 2015).

We note Complainant’s contentions on appeal. However, because she withdrew her hearing
request, she did not avail herself of the discovery process which would have allowed for an
examination of the credibility or lack thereof of management’s explanations, we can only evaluate
the facts based on the weight of the evidence presented to us. We therefore find that Complainant
has failed to demonstrate by a preponderance of the evidence that discrimination or retaliation
occurred; or that the Agency subjected her to harassment and a hostile work environment.

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 decisions.

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.
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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. 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

October 31, 2019
Date