Felisha A.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120152034 (E.E.O.C. Mar. 9, 2017)

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

Felisha A.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.

Appeal No. 0120152034

Hearing No. 420-2013-00181x

Agency No. CRSD201300162

DECISION

On May 29, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s May 7, 2015, final order 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 Equal Employment Opportunity Commission (EEOC or Commission) AFFIRMS
the Agency’s final order adopting the EEOC Administrative Judge’s (AJ) finding of no
discrimination as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-13 Program
Complaints Specialist in the Agency’s Programs Complaints Inquiry Branch (PCIB) facility in
Montgomery, Alabama. On January 18, 2013, Complainant filed an EEO complaint alleging
that the Agency discriminated against her on the bases of race (Caucasian) and age (59) when
she received notification that she had not been selected her for the position of PCIB Branch
Chief. She asserted that the Selecting Official (SO), the then Director of the Office of Civil

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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Rights (OCR) in the United States Department of Agriculture, Farm Service Agency (who
retired on January 3, 2013), preferred only Black males and Black females, most of whom
were under the age of 50, to fill Branch Chief positions. Complainant claimed that because she
is Caucasian and over 50 years of age, she was not afforded the opportunity to fairly compete
for the position of PCIB Branch Chief. 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 AJ. On June 23, 2013, Complainant requested a hearing.

The AJ held a hearing on February 5, 2015, and issued a decision finding no discrimination on
April 6, 2015. In the decision, the AJ found that SO chose Selectee, a Black male over age
40, to fill the position at issue, because he received the highest score from the screening panel.
The SO testified that it is his standard practice to select the candidate who receives the highest
score from the screening panel. All of the interview panel members testified during the hearing
that Selectee provided the best answers to the interview questions that were asked. The AJ
concluded that Complainant had not shown that the Agency's articulated reason is a pretext for
unlawful discrimination. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. Complainant filed the instant appeal from the Agency’s decision.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). In rendering this appellate decision we
must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting
them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an
Agency’s final action shall be based on a de novo review…”); see also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, §
VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to
issue a decision without a hearing, and the decision itself, will both be reviewed de novo). We
find no error in the AJs’ (two AJs handled processing of the case at different times) processing
of the case. We find no errors in the AJs’ handling of motions or discovery.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

We find that substantial evidence supports the AJ’s finding of no discrimination. Complainant
offered no evidence showing that SO ever deviated from his practice of hiring the individual
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with the highest score and the record shows that Selectee’s score of 24 was higher than
Complainant’s score of 21.5. Thus, we find that Complainant has not shown that the Agency’s
reason for her nonselection was a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s final order adopting the AJ’s finding of no
discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 tends 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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).
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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

March 9, 2017
Date