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

Equal Employment Opportunity Commission

Sep 14, 2020

2020000172 (E.E.O.C. Sep. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Loyd H.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020000172 Agency No. FS-2018-00850 DECISION On September 3, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 31, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a National Wildlife Ecologist, GS0486-13, at the Agency’s National Forest Service, Headquarters, National Forest System Deputy Chief Area, Wildlife, Fish, Water Air and Rare Plants (WFWARP) Staff Area since April 2010 and has been a permanent USDA employee since 1990. On November 30, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on age (over 40) when: on July 6, 2018, he learned that he was not selected for a GS-0401-15, Director of Ecosystems Management position, Southwest Region, advertised under Vacancy Announcement #18-SVQ3-0401-15-372907-G-MB. 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 2020000172 After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on July 31, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANAYLSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Complainant has worked as a National Wildlife Ecologist, GS0486-13, at the Agency’s Forest Service, Headquarters, National Forest System Deputy Chief Area, WFWARP Staff Area since April 2010 and has been a permanent USDA employee since 1990. Complainant works remotely from the Rocky Mountain Regional Office in Lakewood, Colorado. During the relevant period Complainant applied for the Director of Wildfish, Rare Plants and Range position, Southwest Region, GS-0401-15, advertised under Vacancy Announcement #18- SVQ3-0401-15-372907-G-MB. A panel of four management officials was convened to interview the candidates for the subject position. 3 2020000172 Nine applicants were on the selection certificate. Each panel member independently identified his or her top three candidates for interview. The panel conducted a conference call to discuss their recommendations, and identify candidates who would proceed for interview and reference check. The panel agreed to have four candidates for interviews and for reference checks. Complainant was not one of the four candidates for interviews and reference check. Following the interviews, the Executive Leadership Team (ELT) selected the selectee for the Director of Wildlife, Rare Plants and Range position. The Regional Forester (over 40) explained that the Deputy Regional Forester was responsible for submitting paperwork to fill the subject position and approved the paperwork to authorize the subject position to be advertised. After receiving the certificate of eligible candidates from Human Resources, the Deputy Regional Forester implemented an interview panel of four Agency officials. The Regional Forester averred that the Deputy Regional Forester’s first choice for the panel was the Forest Supervisor because of his knowledge of the subject position. The Forest Supervisor was assigned as the Team Lead of the panel. The Regional Forester stated that the Forest Supervisor was “the logical one to lead the initial screening for his replacement.” Further, the Regional Forester stated that his knowledge of Complainant’s qualifications for the subject position “comes from the meeting in which [Forest Supervisor] described the four candidates that the panel intended to interview. The four candidates that the panel recommended to interview were described as having the best demonstrated skills and experience in the areas that I described earlier. The group of four was accepted and the interviews were conducted. The four people interviewed had significant distinction as compared to [Complainant].” For instance, he stated that the four candidates “had the strongest applications demonstrating experience and leadership capacity in four areas and strong experience integrating those four areas into other programs of work. All four of them were, in very recent times of their careers, supervisors of organizations and had demonstrated leadership capacity and commitment to work environment, civil rights, and supervision responsibilities.” The Team Lead (over 40) was asked to lead the panel because it was his former position. He stated that after he and the panel members reviewed the candidates who were on the certificate. They conducted a conference call to discuss “who had the highest level of qualifications to go forward for interviews and reference checks…we had a group discussion about the most highly qualified candidates and reached unanimous consent of two candidates.” The Team Lead explained that subject position “is a very high leadership level. There is a common core of skills necessary for a GS-15 supervisor who is a member of a Regional Leadership Team.” Further, the Team Lead stated that the subject position involves intense knowledge in endangered species and wildlife management, range management (management of permitted livestock and grazing), wild horse management, and conflict resolution with legislators and the public in intense resource management conflict areas. The Team Lead explained that Complainant was not referred for interview and reference check because Complainant did not have the substantive experience for the subject position. 4 2020000172 Specifically, the Team Lead noted that Complainant “did not have significant experience in managing range issues directly as a responsible official or with wild horses. He did not have that direct experience as a senior (GS-14 or 15) responsible official signing grazing permits or signing off as the Line Officer on projects.” He noted that in his resume, Complainant had extensive high level experience “as a research biologist working in endangered species. He was an author on several critical publications dealing with sensitive and endangered species. I never gave serious thought to him for further reference check or interview because I could not see on his resume strong experience at a senior level directly managing permitted grazing or anything related to wild horses.” The Team Lead asserted that the selectee was selected for the subject position based on extensive work experience. The Team Lead noted that the selectee had experience with escaped reservation horses at Lincoln National Forest and had strong experiences in multiple resource areas. He also noted that the selectee had experience directly managing multiple resources areas as a GS-14 or GS-15. Furthermore, the Team Lead averred drafting the “Letter for ELT Selection Approval” in which the Regional Forester approved the selection of the selectee and signed the letter. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. Complainant asserted that he was qualified for the subject position because he has more experience with the Agency than the selectee. However, the Team Lead disagreed. Specifically, the Team Lead stated that Complainant is well known as an esteemed biologist but his resume did not appear to address the range management and wild horse management. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 5 2020000172 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. 6 2020000172 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 September 14, 2020 Date