Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120111445 (E.E.O.C. Mar. 20, 2013)

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

,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120111445

Hearing No. 460-2010-00026X

Agency No. RD-2009-00242

DECISION

Complainant filed an appeal from an Agency’s final order dated December 7, 2010, finding no
discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated February 18, 2009, Complainant, a GS-12, Area Specialist, in Camilla,
Georgia, alleged discrimination based on race (White), age (over 40), disability1

, and in
reprisal for prior EEO activity when: (1) on December 19, 2008, he learned that he was not
selected for the position of Loan Specialist under Vacancy Announcement No. UK-220310-
RD-RB, GS-1165-12; and (2) beginning in October 2007, and ongoing, he has been subjected
to harassment when he was subjected to unwarranted job criticisms, onerous and unreasonable
work assignments, demeaning comments, and when he received a memorandum criticizing his
job performance on September 25, 2008. At the conclusion of the investigation, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October 6, 2010, the AJ,
after a hearing, issued a decision finding no discrimination, which was implemented by the
Agency in its final order.

1 Complainant indicated that during the relevant time period at issue, he experienced stress,
anxiety, depression, insomnia, argumentative behavior, and chronic pain.
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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, § VI.B. (November 9, 1999).

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 alleged incidents. With regard to claim (1), Complainant claimed that he
applied for the GS-1165-12, Loan Specialist position under Vacancy Announcement No. UK-
220310-RD-RB, GS-1165-9/11/12, but he was not selected. The AJ stated that four panelists
initially placed both Complainant and a selectee, a GS-9, as the top two applicants after their
review of the applications and interviews. The selecting officer, i.e., the State Director,
selected the selectee for the position at issue, GS-1165-11. The AJ indicated that the selecting
officer testified that he was surprised to see Complainant as one of the top two applicants for
the position at issue because in his discipline, he was not motivated or self-disciplined. The
selecting officer also indicated that Complainant previously was involved in inappropriate
conduct when in May 2007, he sent a letter to a former Chairman of the Republican Party in
Georgia complaining about the Agency’s plan to close the Bainbridge office where he was
assigned at that time. The record indicates that the Bainbridge office was ultimately closed and
its employees, including Complainant, were moved to Camilla. The AJ noted that
Complainant’s May 2007 letter was not protected activity in that it did not raise any
discrimination issues. The AJ indicated that although the selecting officer was not happy with
that letter, there was never any discipline issued to Complainant at the relevant time, but he
continued to bear a grudge concerning it up to the nonselection.

With regard to claim (2), the AJ stated that Complainant’s supervisor did not talk well to his
employees, including Complainant. The AJ noted that the supervisor said to groups of his
employees as well as individually to employees, “I’m the boss. Do as I say or you’ll be
disciplined and fired.” On appeal, Complainant acknowledges that the supervisor regularly
opened the monthly area meetings with threats. On some occasions, the supervisor “directed
the threats to everyone present at the meeting.” The AJ indicated that the supervisor was
clearly viewed as harsh and overbearing by many of his employees, not only Complainant.

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In this decision, we do not decide whether Complainant was a qualified individual with a
disability within the meaning of the Rehabilitation Act. There is no evidence that Complainant
requested any accommodation. In this case, Complainant clearly has not claimed that he was
denied a reasonable accommodation or that he was required to perform his duties beyond his
medical restrictions. With regard to his claim of harassment, we find that Complainant failed
to establish the severity of the conduct in question or that the conduct was related to any
protected basis of discrimination. Furthermore, Complainant failed to show that his
qualifications for the position were plainly superior to the selectee’s qualifications or that the
Agency’s actions were motivated by discrimination. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995). 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.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by
substantial evidence.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 20, 2013
Date