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

Equal Employment Opportunity Commission

Mar 26, 2013

0120121140 (E.E.O.C. Mar. 26, 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. 0120121140

Hearing No. 520-2011-00235X

Agency Nos. RD-2009-00604, RD-2010-00595, RD-2011-00059

DECISION

Complainant filed an appeal from an Agency’s final order dated November 29, 2011, finding
no discrimination with regard to his complaints. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaints, dated July 13, 2009, August 22, 2010, and January 6, 2010, which were
subsequently consolidated for processing, Complainant alleged discrimination based on
race/national origin (Hispanic), sex (male), and in reprisal for prior EEO activity when:

(1) On May 12-15, 2009, his supervisor rescinded the offer of overtime for him;
(2) On May 13, 2009, his loan file was tampered with and “erred” by a coworker, and
management was notified and failed to act;
(3) On May 11, 2009, management confronted him in a negative manner, regarding a
mistake on a loan;
(4) On May 5, 2009, his supervisor yelled, intimidated and threatened him (i.e., “You
do not have a future with the Agency” and “Go ahead and call EEO, nothing will
happen”);
(5) From March, 2009, through July, 2009, he was not afforded the same opportunities
to progress on the job and receive a grade increase as Caucasian coworkers;
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(6) On March 12, 2010, he learned he was not selected for the GS-1165-11/12 Area
Loan Specialist position, advertised under Vacancy Announcement Numbers MA-
10-06 (merit) and MA-10-06-DEU; and
(7) On October 1, 2010, he was passed over for a merit award and accompanying
monetary compensation.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On October 21, 2011, The AJ, after a hearing, issued a decision
finding no discrimination, which was implemented by the Agency in its final order. Other than
filing a notice of appeal, Complainant files no brief in support of his appeal.

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. The record indicates that during the relevant time period at
issue, Complainant was a GS-9 Loan Specialist assigned to the Agency’s Windsor, Connecticut
field office. With regard to claim (1), the AJ noted that the only person who requested and
was approved for overtime in the past was Complainant. The AJ stated that the supervisor,
after consulting with her superior, informed Complainant that although he could not receive
overtime for his outreach event, he could still receive overtime by crediting his time for the
loans if he needed additional time to process the loans because he was away at outreach.

With regard to claim (2), the AJ stated that Complainant assumed without evidence that the
supervisor was out to get him. The AJ noted that during the relevant time period at issue,
more likely than not, Complainant’s coworker who worked primarily with Complainant’s files,
was trying to get files that she needed to work on from Complainant’s desk. The AJ indicated
that the supervisor credibly testified that she did not have the time to peruse an employee’s
desk to look for mistakes. With regard to claim (3), the AJ found, even if the incident did
occur, that it was not based on any discrimination as Complainant alleged.

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With regard to claim (4), the supervisor denied Complainant’s claim. The AJ found the
supervisor’s testimony credible denying the statements Complainant claimed she made during
their May 5, 2009 meeting and it was more likely than not that the supervisor was not yelling.
The AJ also found the supervisor’s testimony credible that she did not say that EEO would not
do anything, but rather said that it was his absolute right to file an EEO complaint. The AJ
noted that the supervisor and other area specialists were cautious around Complainant since he
had a tendency to assume people were out to sabotage him.

With regard to claim (5), the supervisor stated that Complainant was originally hired as a GS-5
with noncompetitive promotion potential to GS-9 as a career ladder position in June 2005. The
supervisor indicated that Complainant received a within grade increase on June 25, 2006;
promotion to GS-7 on March 4, 2007; a within grade increase on March 2, 2008; promotion to
GS-9 on May 25, 2008; and a within grade increase on May 24, 2009. The Agency stated that
there was no delay in Complainant’s promotion. The supervisor stated that Complainant
received his requested training including on the job training.

With regard to claim (6), the State Director, the selecting official for the position at issue,
stated that he along with the Human Resources Manager interviewed Complainant and two
other candidates for the position at issue. The State Director indicated that management sought
a candidate with banking and commercial lending and the selectee had lending experience
whereas Complainant had no lending experience. The AJ stated that at the hearing,
Complainant testified that he was not arguing that he was more qualified or plainly superior to
the selectee.

With regard to claim (7), the supervisor indicated that based on award criteria, i.e.,
employees’ performance/production levels, hard work, accountability, communication,
teamwork, internal customer service, and external customer service, she only recommended
one employee out of her eight employees for a performance award at issue.

With regard to his claim of harassment, the AJ found and we agree that Complainant failed to
establish the severity of the conduct in question or that it was related to any protected basis of
discrimination. Furthermore, the AJ found and we agree that Complainant failed to show that
he was treated less favorably than a similarly situated employee under similar circumstances.
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.

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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.
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
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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 26, 2013
Date