[Redacted], Lupe M., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Nov 16, 2022

Appeal No. 2022001651 (E.E.O.C. Nov. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lupe M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2022001651 Agency No. FS-2021-00114 DECISION On February 4, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 5, 2022 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Supervisory Fire Engine Operation (SFEO), GS-0462-08, USDA, Forest Service (FS) at the Cleveland National Forest, Descanso Ranger District, Mt. Laguna, California. On January 5, 2022, Complainant filed a formal EEO complaint claiming the Agency discriminated against him based on sex (male) when: On November 5, 2020, Complainant learned that he was not selected for the GS-0462-9, Assistant District Fire Management Officer (ADFMO) position in the Descanso Ranger District, Cleveland National Forest, as advertised under Vacancy Announcement Number: 21-FIRE-DHA-R5-DZAFMO-89DH. 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. 2022001651 2 After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. The Agency issued the instant final decision pursuant to 29 C.F.R. 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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, as here, 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). Presuming arguendo that Complainant established a prima face case, Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. In August of 2020, Complainant applied for an ADFMO (Fuels) position in the Descanso Ranger District, Cleveland National Forest. Complainant was deemed qualified and interviewed for the position along with two other candidates. The District Ranger (male), also Complainant’s third-line supervisor, served as the senior ranking recommending official for the selection. He made the final recommendation decision for the position and signed the recommendation form. 2022001651 3 The Descanso District Fire Management Officer (male) served as a second recommending official, reviewed applicants, and interviewed the top three candidates with the District Ranger. These two officials provided their recommendation for the selectee to the Forest Supervisor of the Klamath National Forest, who made the official selection based on their recommendations. The three candidates were interviewed, including Complainant, the selectee (female), and another male FS employee. All three candidates were assessed regarding pre-determined written Knowledge, Skills, and Abilities (“KSAs”) throughout the evaluation process. The District Ranger stated that Complainant provided a very strong interview, receiving a “superior” evaluation for four of the rated questions and a “good” evaluation on the other two for a total of 22 and an average score of 3.7. The District Ranger stated all three candidates provided very strong interviews. The selectee also had a total score of 22 and an average score of 3.7. The third candidate had a total score of 24 and an average score of 4.0. The District Ranger stated that the selectee was highly qualified for the subject position based on KSAs communicated in her application, resume, reference checks, and interview. The District Ranger noted the selectee possessed extensive specialized experience in hazardous fuels management obtained through practical experience. In addition, the District Ranger stated that the selectee was more qualified than Complainant although a simple “yes or no” question does not fully communicate the complexity and nuance of the situation. The Descanso District Fire Management Officer stated that all the top three candidates are excellent employees and any one of them would have been a good selection for the subject position. He picked the top three candidates knowing that, regardless of who had been selected, the district would be in good position to continue its mission. Moreover, the Descanso District Fire Management Office stated that the selectee has done an outstanding job in this position since she was selected. After careful review of the record, we conclude Complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons for the selection decision were a pretext for discrimination. Complainant and the other two candidates interviewed were all deemed well qualified, as discussed above. However, Complainant has not shown that the alleged disparities in qualifications between himself and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). There is no other evidence to suggest that sex played any role in the selection process. As such, we find that Complainant failed to establish by a preponderance of the evidence that he was discriminated against as he alleged. CONCLUSION Therefore, after a review of the record in its entirety, including consideration of all statements, we AFFIRM the Agency’s final decision finding no discrimination. 2022001651 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022001651 5 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). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 16, 2022 Date