Maxie S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Jul 12, 2017

0120161057 (E.E.O.C. Jul. 12, 2017)

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

Maxie S.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120161057

Hearing No. 570-2013-00298X

Agency No. RD-2012-00056

DECISION

Complainant filed an appeal from an Agency’s final order dated December 9, 2015, finding no
discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, filed on June 29, 2012, Complainant alleged discrimination based on age (over
40) when on September 13, 2011, she was not selected for the position of GS-301-13/14, Special
Projects Coordinator (SPC), advertised under Vacancy Announcement Number 11-RUS-29KA,
because the vacancy was canceled and later filled by lateral transfer. At the conclusion of the
investigation, Complainant requested a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). The AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the Agency in its final order.

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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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. National Labor Relations Board, 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). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

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).

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the nonselection. At the relevant time period at issue, Complainant was employed by
the Agency as a Management Analyst, GS-0343-13, Electric Program within Rural Utilities
Service (RUS). Complainant applied for the SPC GS-13/14 position within RUS but on
September 12, 2011, she was notified by the Agency that the subject vacancy announcement was
canceled.

The AJ indicated that the Agency canceled the RUS vacancy because none of the applicants for
the SPC position met her vision of what they were looking for. The AJ also indicated that the
evidence showed that in July or August, 2011, a GS-14 Senior Policy Advisor (under 40)
(Employee A) from Rural Business-Cooperative Service requested and was transferred to RUS
as a GS-14 Senior Policy Advisor. Employee A was subsequently placed in the SPC GS-14
position. The AJ stated that even if Employee A had been selected for the vacant position at
issue, the preponderance of the evidence did not support a finding it was based on discrimination
as Complainant alleged. For the position, indicated the AJ, the Agency was interested in
utilizing Employee A’s expertise gained from working at Office of Management and Budget
(OMB) in order to create a program and the accompanying regulation for the Energy Efficiency
and Conservation Loan Program of which Complainant did not possess.

The AJ stated that Complainant failed to show by a preponderance of the evidence that the
Agency’s proffered reasons were pretextual. Upon review, we find that the AJ’s factual findings
of no discriminatory intent are supported by substantial evidence in the record.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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
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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

July 12, 2017
Date