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

Equal Employment Opportunity Commission

Feb 13, 2013

0120113254 (E.E.O.C. Feb. 13, 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. 0120113254

Hearing No. 410-2010-00439X

Agency No. RD-2010-00248

DECISION

On June 21, 2011, Complainant filed an appeal from the decision concerning his equal
employment opportunity (EEO) complaint alleging 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s Field Services Branch in St. Louis, Missouri. On March 1, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of his race (Black) and age (65) when on December 19, 2009, he was not selected for the
position of Loan Specialist, GS-9, advertised under vacancy announcement number SC-2010-
002.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on
May 16, 2011, and issued a decision finding no discrimination. When the Agency failed to
issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged
became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). On appeal,
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Complainant reiterated his contention that the Agency’s articulated reasons for its actions are
unworthy of belief.

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.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here, assuming arguendo that Complainant established a prima facie case of race and age
discrimination, we concur with the AJ’s finding that the Agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. The record reflects that on December 4,
2009, Complainant applied for the instant position. Although applicants are generally required
to submit their applications through the Agency’s computer system, Complainant was given
permission by the human resources office to submit his application in writing as he did not
have internet access at that time. The record further shows that in completing his application,
Complainant failed to follow the directions as stated with regard to providing detailed
information about his prior employment. As such, the Agency issued Complainant a letter
notifying him that his application had been rejected. Although Complainant subsequently
appealed the rejection, human resources upheld the rejection and identified the specific
required information missing from Complainant’s application. We find that Complainant failed
to show that the Agency’s actions were motivated by discriminatory animus. In so finding, we
note that Complainant acknowledges that he did not complete the required sections of the
application as directed. We concur with the AJ’s finding that Complainant failed to show he
was subjected to unlawful race or age discrimination.
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CONCLUSION

We find no basis upon with to disturb the AJ’s finding of no discrimination. Accordingly, the
Agency’s final order is AFFIRMED.

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.
0120113254

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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

February 13, 2013
Date