Kendall C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Nov 26, 2019

0120180161 (E.E.O.C. Nov. 26, 2019)

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

Kendall C.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120180161

Agency No. APHIS-2017-00186

DECISION

On October 12, 2017, 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
September 5, 2017, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to discrimination based on age when he was not selected for a
position with promotional potential.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was 61 years old and worked as
a Supervisory Mounted Patrol Inspector, GS-0704-10, in the Agency’s Cameron County Cattle
Fever Tick Eradication Program (CFTEP) in Brownsville, Texas. In September 2016,
Complainant timely applied for a GS-0704-10/11/12 Assistant Director – Field

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.
0120180161

2
Operations/Supervisory Animal Health Technician position. The selecting official for the
vacancy was Complainant’s second-line supervisor, the Laredo, Texas-based Assistant Director
for the CFTEP (S1, 48 years old).

Complainant was one of three candidates selected to interview for the Assistant Director – Field
Operations position. S1 stated that she conducted in-person interviews in Laredo with the three
candidates. According to S1, in addition to herself, the interviews were conducted by two in-
person panelists (S2, 62 years old; and S3) and a fourth panelist who participated by telephone
(S4).2 The panel also reviewed and scored the candidates’ application materials.

S1 averred that the panel was looking for a thorough understanding of programs, supervisory
ability, strong communication, willingness to promote programs, and the ability to develop new
protocols. According to S1, after the interview, Complainant had the second-highest ranking
based on his interview and a review of his application materials. S1 stated that Complainant did
not have sufficient experience in or understanding of quarantine prognosis and treatment
protocols. S1 stated that she selected the highest-ranked candidate, a GS-0704-10 Supervisory
Mounted Patrol Inspector for Zapata County.

S2 stated that the selectee was unanimously ranked first by the panel. S2 averred that the
selectee’s answers to the interview questions were the most thorough and comprehensive,
indicating that the selectee would be better able to make the program more efficient and
effective. According to S2, Complainant’s answers were noticeably less thorough than the
selectee’s.

Complainant stated that he has worked for the Agency since 1978. The record indicates that the
selectee was born in 1977, so the selectee would have been 38 or 39 years old at the time of his
selection. According to the record, the selectee has worked for the Agency since 2002, and the
selectee worked for two ranches between 1996 and 2002. Complainant alleged that he is better
qualified than the selectee because he has worked for the Agency longer than the selectee has
and because he has performed all aspects of the position in question. Complainant averred that he
has extensive program knowledge, citing his role as the sole contact for a litigious rancher.
Complainant stated that it would not make sense for him to be the sole contact with this rancher
if, as S1 alleged, he did not have an understanding of quarantine protocols. Complainant also
noted that he was the union president for five years, during which time he oversaw the upgrading
of Technician positions from GS-7 to GS-8 and renegotiated the collective bargaining
agreement. Complainant stated that he has been a firearms instructor since 1985. According to
Complainant, he also designed and implemented a plan to subdivide a large quarantine area into
manageable sectors.

2 S3 was not a federal employee during the investigation and did not respond to the EEO
Investigator’s request to schedule an interview. S4 had retired by the time of the investigation,
and the EEO Investigator did not receive accurate contact information for S4.
0120180161

3
Complainant averred that when S1 told him that she had selected the selectee, he told her that he
“knew it was because it was preselection.” Report of Investigation (ROI) Exhibit 7 at 4.
According to Complainant, S1 and the selectee are “tight.” Id. Complainant stated, “It is known
around the agency that upper management wants to hire younger people.” Id. Complainant
alleged that S4 had made statements along the lines of the Agency wanting to hire younger
people. S1 stated that she was unaware of Complainant’s age and denied that the age of the
candidates was a factor in her decision.

A GS-8 Mounted Patrol Inspector (C1, 49 years old) stated that Complainant was the best-
qualified candidate and that he believed that S1 preselected candidates for vacancies. According
to C1, S1 likes to hire people who she can easily control, many of whom are younger. C1 alleged
that once S1 made a statement that “age and experience do not matter, and seniority means
nothing.” ROI Ex. 13 at 2. According to a GS-8 Mounted Patrol Inspector (C2, 65 years old), S4
said in the past that the selectee was selected for acting manager assignments to groom him for
the future. C2 stated that S1 and other managers want to “get rid of all of us old men and hire
younger, yes-men that will do as they say and not question them.” ROI Ex. 14 at 2.

A retired GS-8 Mounted Patrol Inspector (C3, 64 years old) averred that the selectee is S1’s
favorite. C3 alleged that S1 had said that the program needed “new blood” and managers “that
are going to be around a while.” ROI Ex. 15 at 2. A GS-8 Mounted Patrol Inspector (C4, 70
years old) stated that he did not apply for the vacancy in question because he assumed that the
selectee was preselected and because S4 stated, “The person we select will lead the tick force for
the next generation.” ROI Ex. 16 at 2. C4 stated that he took S4’s statement to mean that older
employees need not apply. A GS-8 Mounted Patrol Inspector (C5, 43 years old) stated that there
was a lot of favoritism in the hiring process. Another GS-8 Mounted Patrol Inspector (C6, 36
years old), averred that S4 told a group of inspectors that the selectee would be working in
certain counties so that he could be promoted.

On February 10, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of age (61)3 when, on October 20, 2016, he was not

3 Complainant also alleged discrimination based on reprisal based on his association with his
son. According to Complainant, his son works for the Agency as a Mounted Patrol Inspector and
reports to S1, and his son filed either an EEO complaint or a grievance against S1. The Agency
dismissed reprisal as a basis for failure to state a claim, reasoning that Complainant had not
engaged in prior protected activity. We remind the Agency that a complainant is protected from
reprisal not only based on his own protected EEO activity but also is protected from reprisal
based on his association with someone who has engaged in protected EEO activity. See
Thompson v. North American Stainless, L.P., 562 U.S. 170, 131 S.Ct. 863, 869-70 (2011) (Title
VII provides a cause of action to an employee who suffers an adverse action in retaliation for
another individual’s protected EEO activity); Complainant v. Dep’t of the Army, EEOC Appeal
No. 0120131915 (Jan. 16, 2014). From the record, it is not clear whether Complainant’s son
engaged in protected EEO activity. However, Complainant does not raise the procedural
dismissal of reprisal as a basis on appeal. The Commission exercises its discretion to address
0120180161

4
selected for the GS-0704-10/11/12 Assistant Director – Field Operations/Supervisory Animal
Health Technician position advertised under vacancy announcement number 6VS-APHIS-MA-
2016-1299.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation 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). Therein, the Agency concluded that Complainant had failed to prove that the
Agency subjected him to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S4, who was S1’s mentor before he retired, often stated
that he wanted leaders who would be around for a generation. Complainant avers that S4 told
him that seniority was not a valid consideration for leadership positions. According to
Complainant, the selectee had limited experience outside of Zapata County, while Complainant
had worked throughout the state of Texas. Complainant states that he had the flu the week of the
interview and was therefore at a disadvantage compared to the selectee. According to
Complainant, he also had to drive 200 miles one way to the interview in Laredo, whereas the
selectee only had to drive 100 miles round trip to the interview.

The Agency offers no contentions in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

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 (EEO MD-110), at Chap. 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”).

Complainant alleged that he was subjected to discrimination based on age when he was not
selected for the Assistant Director – Field Operations position. 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 (1973).

only those issues specifically raised on appeal and declines to address this procedural dismissal.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110) at Chap. 9, § IV.A (Aug. 5, 2015).
0120180161

5
He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency’s legitimate, nondiscriminatory reasons for selecting the selectee over Complainant
were that the selectee’s interview answers were more thorough than Complainant’s, indicating
that the selectee was adaptable and could improve the program, and that the selectee had more
experience and a better understanding of quarantine prognosis and treatment protocols. This
explanation is sufficient to meet the Agency’s very light burden under Burdine, supra.

The burden now shifts to Complainant to establish by the preponderance of the evidence in the
record that the Agency’s proffered reasons are a pretext designed to mask discrimination based
on age. Pretext may 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), request for recon.
denied EEOC Request No. 0520080211 (May 30, 2008). In nonselection cases, a complainant
may demonstrate pretext by showing that his qualifications for the position were plainly superior
to those of the selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721
(Dec. 3, 2015).

Complainant raises three primary arguments with respect to pretext: (1) that S1 and S4 had made
comments that indicated animus against older employees; (2) that his qualifications were
superior to those of the selectee; and (3) that the selectee was preselected, or the selection
process was otherwise unfair. We address these three arguments in turn.

Complainant cites statements by S1 and S4 as evidence of pretext for age-based discrimination.
Complainant alleged that S4 had stated that the Agency generally wanted to hire younger
managers. However, we find that S4’s general comments, even if uttered as alleged, do not
establish discriminatory animus with respect to the vacancy in question. Regarding the Assistant
Director – Field Director vacancy, C1 also averred that S1 stated that age and experience did not
matter; C4 stated that S4 said that the person selected for the vacancy would provide leadership
for the “next generation”; and C3 stated that S1 had stated that the program needed “new blood.”
The Commission has held that the term “fresh blood” does not necessarily reflect an ageist bias.
Hiller v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120102109 (Aug. 17, 2012).
0120180161

6
Further, we find that it was reasonable for S1 to emphasize adaptability and the ability to
implement new protocols as desirable traits for the Assistant Director – Field Operations while
deemphasizing the length of the candidates’ tenure. We therefore do not find that Complainant
has established pretext for discrimination with the alleged comments by S1 and S4.

Complainant argues that his qualifications were superior to those of the selectee because of his
longer tenure with the Agency and broad experience. Complainant’s tenure alone is not enough
for a showing of pretext. McElroy v. Dep’t of the Army, EEOC Appeal No. 0120100652 (Aug.
2, 2011). A candidate’s length of service, without more, does not necessarily outweigh other
factors that may impact qualifications. Id.

Complainant and various witnesses asserted that Complainant was also more qualified than the
selectee with respect to the breadth of his experience. According to the record, the selectee was a
Supervisory Mounted Patrol Inspector since 2009, while Complainant began acting as a
Supervisory Mounted Patrol Inspector in 2010 and became a Supervisory Mounted Patrol
Inspector in 2015. Their application materials reflect similar experience. We therefore do not
find that Complainant has established by the preponderance of the evidence in the record that his
qualifications were plainly superior to those of the selectee. Further, an employer has the
freedom to exercise its discretion to choose among qualified candidates. Canham v. Oberlin
College, 666 F.2d 1057, 1061 (6th Cir. 1981); Ypsilantis v. Dep’t of Labor, EEOC Appeal No.
01A050602 (March 27, 2001). Here, the Agency was filling a supervisory position and, as such,
has even greater discretion. Hickman v. Dep’t of Justice, EEOC Appeal No. 01A11797 (Dec. 20,
2001). Therefore, Complainant has not established pretext by showing that his qualifications
were plainly superior to those of the selectee.

Finally, Complainant and multiple witnesses allege that the selectee had been groomed for the
vacancy in question and was preselected by management. However, even if the selectee was
preselected, Complainant has not established by the preponderance of the evidence in the record
that the preselection was motivated by discriminatory animus. Goostree v. Tennessee, 796 F.2d
854, 861 (6th Cir. 1986).

Complainant also contends on appeal that the interview process was unfair because he had the
flu that week and had to drive further to Laredo than the selectee, impairing his performance at
the interview. We find that Complainant’s contention that his illness and long drive affected his
interview performance actually corroborates S1 and S2’s recollections that Complainant’s
answers were less thorough and comprehensive than the selectee’s. Further, Complainant has not
established that any unfairness related to the interview process was based on age-based animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has failed to establish by the
preponderance of the evidence that the Agency’s articulated legitimate, nondiscriminatory
reasons are pretextual.
0120180161

7
Accordingly, we AFFIRM the Agency’s final decision because the preponderance of the
evidence in the record does not establish that discrimination occurred as alleged.

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.
0120180161

8
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

November 26, 2019
Date