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

Equal Employment Opportunity Commission

Jul 6, 2017

0120160176 (E.E.O.C. Jul. 6, 2017)

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

Maxima S.,1
Complainant,

v.

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

Appeal No. 0120160176

Agency No. RD-2015-00282

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated September 16,
2015, finding no discrimination concerning 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 decision finding
no discrimination.

BACKGROUND

In her complaint, filed on February 27, 2015, Complainant alleged discrimination based on age
(over 40) when on December 17, 2014, she learned that she was not selected for the GS-1165-12,
Community Programs Specialist Position, which was advertised under Vacancy Number MWIA-
2015-013.

After completion of the investigation of the complaint, Complainant did not request a hearing.
The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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

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), 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the nonselection at issue. At the time of the incident, Complainant was employed by
the Agency as a Rural Housing Program Specialist, GS-1165-11, in Waverly, Iowa. Before that,
Complainant was a Community Program Specialist, GS-1165-12, at the Agency in Indianola,
Iowa, from October, 2002, to August, 2014, until she requested a transfer to the Waverly Office
and accepted her Rural Housing Program Specialist position at a lower GS-11 grade level.
Complainant applied for the Community Program Specialist position, GS-1165-12, at issue, but
was not selected. The record indicates that the duties of the Community Program Specialist
position included, among other duties, providing leadership and guidance and reviewing a
variety of complex loans and/or grants for community facilities and rural utilities.

The Selecting Official (SO) for the position at issue indicated that Human Resources Office
referred four best qualified candidates, including Complainant, to her for the selection and she
convened three interview panelists, including her, to interview the applicants. The panelists
stated that they asked each of the candidates the same questions and took notes of their responses
and did not use a ranking or scoring system. Specifically, the panelists indicated that they were
looking for a candidate who: was well received by the staff; had excellent verbal and writing
skills; could work well with internal and external customers; was detailed-oriented; and had a
clear understanding of the state office and area office roles. Acknowledging Complainant’s long
experience in the position at issue, the panelists stated that she was not well received in her
interview and she came across as impudent and they believed that she would not be a good fit for
the position. The panelists ultimately recommended the selectee, who also had experience
reviewing loans although not extensive as Complainant had, finding she was better suited for the
position because: she had better communication skills; she had a variety of experience including
her prior experience as a city clerk and as a lender, who were their most common clients; she had
a better understanding of state area office’s roles; and she had a more professional attitude which
was needed for training staff and working with clients. Based on the panelists’ recommendation,
the SO selected the selectee for the position which was approved by her Rural Development
State Director.

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Complainant’s former coworker, now an Area Director, acknowledged that Complainant had
many years of experience as a Community Program Specialist and had a working knowledge of
the job. This former coworker confirmed that some people found Complainant to be abrasive.

The selectee’s application for the position reflects that she was an Area Specialist/Technician at
the Rural Development at the Agency since August, 2010. In that position, the selectee, among
other duties, analyzed loan applications, determined loan eligibility, and researched regulations.
Prior to that position, the selectee was employed as a City Clerk/Financial Officer and Personal
Banker/Investment Executive.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to
show that her qualifications for the position were plainly superior to the selectee’s qualifications.
See Complainant v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).
Although Complainant clearly had more experience for the position, the Agency’s was looking
to fill the position with a good communicator who worked well with its customers. The Agency
found that the selectee had those attributes to a greater degree than did Complainant. Based on
the foregoing, we find that Complainant failed to show that the Agency’s action was motivated
by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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
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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.

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).
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FOR THE COMMISSION:

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

July 6, 2017
Date