Joshua F.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Jun 7, 2019

0120181345 (E.E.O.C. Jun. 7, 2019)

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

Joshua F.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120181345

Agency No. OCFO-CF-2017-00688

DECISION

On March 5, 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
February 10, 2018 final decision concerning his 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

Complainant worked as an EEO Specialist, GS-0260-13, at the National Finance Center (NFC) in
New Orleans, Louisiana. On July 11, 2017, Complainant filed an EEO complaint in which he
alleged that the Agency subjected him to discrimination and a hostile work environment on the
bases of race (African-American), sex (male), and in reprisal for prior protected EEO activity when
on May 19, 2017, he learned that a white female would be named as Acting EEO Chief instead of
him, effective May 28, 2017. Complainant identified the Agency’s Acting Deputy Director, his
second-line supervisor (S2), and the Director, his third-line supervisor (S3), as the responsible
management officials.

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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Following the investigation, the Agency provided Complainant with a copy of the investigative
report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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 him to
discrimination as alleged.

According to S2 and S3, the EEO Chief retired on January 26, 2017. Because there had been a
change of administration the previous week, the Agency was under a hiring freeze. Consequently,
it could not fill the EEO Chief vacancy. In response, S1 decided to appoint the two senior EEO
specialists, Complainant and his colleague (CW) to serve consecutive 120-day details with the
expectation that at the conclusion of those details, the hiring freeze would be lifted. CW was
appointed first because he was the most senior GS-13 in the NFC. Management expected that he
would serve until May 2017, at which point Complainant would take over.

Just before CW’s detail expired, the Human Resources Chief, a GS-15, approached S2 and asked
if she could be temporarily detailed to the EEO Chief position until such time as the Agency
offered a voluntary early retirement incentive. S2, who also managed the Human Resources office,
was aware of perceived tensions in the Human Resources office and agreed to have the Human
Resources Chief serve temporarily in the EEO Chief position to alleviate some of the personnel
issues in that office. S2 agreed to the arrangement with the understanding that the Human
Resources Chief would vacate the EEO Chief position as soon as the early retirement offer was
made. S2 informed the staff during a teleconference held on May 19, 2017, that at the conclusion
of CW’s detail, the Human Resources Chief would be detailed as EEO Chief effective May 28,
2017. The Human Resources Chief had an extensive background in EEO matters, including a stint
as an EEO Manager at another agency. In June 2017, S2 learned that the voluntary early retirement
incentive would not be offered. Consequently, he informed the Human Resources Chief that she
would have to return to her prior position. She did, and Complainant was appointed to the EEO
Chief detail on July 23, 2017. IR 71, 73, 77-79, 87-90, 96, 99, 107-09, 114.

ANALYSIS AND FINDINGS

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”).
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Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed in this case, however, since S2 and S3
articulated legitimate and nondiscriminatory reasons for appointing the Human Resources Chief
to the Acting EEO Chief detail. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 713-17 (1983). Namely, while the original plan was for Complainant to serve in the EEO
Chief detail assignment following CW’s 120-day detail, management granted the Human
Resources Chief request to serve in position after CW to resolve ongoing tensions in the Human
Resources office. Management granted the request with the understanding that the Human
Resources Chief would accept any imminent voluntary early retirement offer. Furthermore, the
Human Resources Chief was a GS-15 and had an extensive EEO background. When management
learned that the retirement incentive would not be immediately offered, the Human Resources
Chief returned to her prior position and Complainant was appointed to the EEO Chief temporary
detail assignment.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanation provided by S2 and S3 is a pretext for discrimination. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Pretext
can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal
Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No.
0520080211 (May 30, 2008).

When asked why he believed that S2 harbored unlawful animus toward him concerning his race,
sex, and prior EEO activity in not appointing him to the Acting EEO Chief detail in May 2017, he
replied that it was because he was the only one who had previously filed EEO complaints and
because it was much easier to have a female in the position than a black male. IR 79-80.
Complainant also pointed out that he had over 17 years of experience in EEO. IR 71.

The Commission notes that agencies have broad discretion to fill vacancies as long as selections
are not based on unlawful considerations. Lashawna L. v. Evtl. Prot. Agency, EEOC Appeal No.
2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they
believe that such candidates are best qualified to meet the needs of the organization. Barney G. v.
Dep’t of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a
candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep’t
of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess
such personnel decisions unless there is evidence of a discriminatory motivation on the part of the
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officials responsible for making those decisions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 259 (1981).

Here there is no question that both Complainant and the Human Resources Chief were eminently
qualified to serve as Acting EEO Chief. Complainant was understandably upset when S2 changed
his mind and appointed the Human Resources Chief to serve in the detail instead. But as soon as
it became clear that the early retirement incentive would not be forthcoming, S2 arranged for the
Human Resources Chief to be returned to her previous position and for Complainant to be
appointed to the Acting EEO Chief detail. Complainant has presented neither affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that
contradict or undercut the explanations provided by S2 and S3 or which undermine their veracity
as witnesses. We therefore find support for the Agency’s conclusion that Complainant has not
presented evidence sufficient to establish the existence of a discriminatory or retaliatory
motivation on the part of S2 or S3 in not appointing Complainant to serve as Acting EEO Chief in
May 2017. Accordingly, we find that Complainant had not demonstrated that he was subjected to
discrimination or reprisal as alleged.

Harassment

To the extent that Complainant is alleging that he was subjected to a discriminatory and retaliatory
hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment 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 Agency management officials were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No.
01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision.

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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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 7, 2019
Date