Danial B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Apr 16, 2019

0120182306 (E.E.O.C. Apr. 16, 2019)

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

Danial B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120182306

Agency No. ARS201700913

DECISION

On June 27, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 30, 2018, final 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly found that Complainant was not subjected to
discrimination based on reprisal (prior EEO activity) when on unspecified dates in 2015, and 2016,
he was not promoted to a GS-0487-14/15, Research Animal Scientist position under the Research
Position Evaluation System (RPES).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Research Animal
Scientist at the Agency’s Agricultural Research Service (ARS) facility in Miles City, Montana.

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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On October 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 as set forth above.

Complainant alleged that he was subjected to discrimination based on reprisal when, twice over a
two-year period, he was not promoted. He stated that he did not become aware of the reprisal until
one year later when he learned that C1, his coworker, was promoted to the GS- 15 level.
Complainant stated that he had served as a witness in a previous EEO complaint after his last RPES
panel.

S1, Complainant’s supervisor, explained that under the RPES the candidate compiles a dossier of
their productivity; the dossier is forwarded to a scientific panel of seven individuals made up of
the candidate’s peers. One of the 7 panel members is chosen to be the in-depth reviewer of the
candidate’s dossier. According to S1, the panel meets, and the in-depth reviewer presents an
evaluation of the dossier. After a discussion, the panel assigns the candidate a score.

Complainant’s second line supervisor, (S2) asserted that the standard process was followed for the
reviews and that it is always consistent. He averred that a human resources specialist is responsible
for ensuring the panel discussions and outcomes are fair, non-biased and follow EEO and Civil
Rights policies.

S2 explained that promotions and evaluations of category 1 scientists are conducted through RPES
and take place every 4 years at the GS-13 level, but an early review may have been requested
through S1 if Complainant believed his accomplishments deserved a higher-grade classification.
S2 stated that early reviews must be considered by the supervisor and are approved by an Area
Director.

Complainant asserted that he expected to be promoted to a GS-14 level considering his two prior
reviews in 2006 and 2010 which resulted in the highest possible score for a GS-13 ranking.
Complainant added that he believed his recent assignment as Lead Scientist would also have
resulted in a higher evaluation. He averred that he has greater administrative and research duties
due to his role as the Lead Scientist; and that he has numerous other accomplishments consistent
with a higher ranking based on criteria listed in the RPES Evaluation Criteria such as assuming
duties of higher graded scientists; receiving speaker invitations; receiving cash rewards for annual
performance; and for his length of service.

S1 stated that Complainant received a review, but his scores were not high enough for a promotion.
He stated that Complainant’s scores were similar to prior years, but he acknowledged that
Complainant’s last three reviews produced lower scores than his previous reviews in prior years.

S2 asserted that he did not lower Complainant’s rating. He stated that, based on his records, the
2015 review appeared to occur on the regular RPES staff schedule and the result of that panel was
for Complainant to remain “in grade.”

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Complainant contended that the RPES decision was not consistent with the guidelines because the
decision was made before S1 spoke with the panel. He stated that the issue is not candidates
competing for a position but the inequality in advancement of research scientist in their current
positions. Complainant adds that he expected to be equitably compensated for his additional
contributions and accomplishments, but he was not been.

S1 opined that Complainant met the criteria for promotion because his productivity regarding the
referred scientific publication was equal to his peers; the impact of his research was equal, if not
higher than his peers, and Complainant had more invitations to make presentations to public and
scientific audiences. However, he believed that all of Complainant’s references were not contacted
or that the references contacted provided a negative evaluation of Complainant. S1 also stated that
the panel did not value Complainant’s research because his scores were so low.

S2 asserted that Complainant was not promoted based on the findings of the RPES panel. He
explained that the panel determined the research being conducted (including research result
impact, scope, and complexity) was not at the next highest level above his current grade
determination. He stated that the panel determined Complainant was performing at his current
grade and was properly classified. S2 viewed the RPES process and evaluation as fair.

Complainant alleged that C1, who trained in the same area of research, was promoted before him;
and that three other research scientists with less time with the Agency were promoted sooner. S1
explained that following the 2015 and 2016 reviews, one other employee was not promoted from
a GS-14 to a GS-15 level; and that one employee was promoted to a GS-15 level without having
to perform the extra duties as Complainant, but the employee was not a lead scientist. S2 explained
that the upgrade statistics versus no upgrade statistics are difficult to compare for scientists in
similar situations as Complainant and it is likely that some of the other scientists in similar
situations as a Lead Scientist also did not receive upgraded scores.

In response to Complainant’s allegation that a coworker received a promotion to a GS-15 with
little or no significant change in his position, S2 stated that he is not aware of this coworker being
a Lead Scientist at the time. He stated that the coworker’s promotion was based on the quality of
science and impact of the science as scored by his RPES Panel. S2 stated that the coworker was
on an established cycle for his review and case paperwork to be submitted, and the panel found
the documentation compelling and of such quality it deserved a GS-15 classification score.

Complainant alleged that his EEO activity was a factor in his non-selection for promotion with
regard to his 2015 and 2016 review because S1 indicated that the review process was biased and,
despite Complainant’s efforts, he has not received a meaningful response as to why his review
scores were lower. S1 stated, however, that he did not believe that the decision not to promote
Complainant was discriminatory; and that the process is the same for all; everyone is treated the
same but they might have different outcomes.
In response to Complainant’s statement that there are research scientists that have been promoted
sooner than him, S2 explained that this statement was probably true, but that the outcome of RPES
panels is based on the same criteria for everyone.
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He noted that time in the Agency is not a consideration. S2 stated that Complainant’s EEO activity
was not a factor in the decision not to promote him following his 2015 and 2016 reviews; and that
he believes the RPES process is fair and equitable and not biased. He stated that he thinks it is a
very good system and has served the Agency well.

Both S1 and S2 asserted that they were unaware of Complainant’s prior protected EEO activity.

In his rebuttal, Complainant maintained that there was inequality in advancement of research
scientists in their current positions. He maintained that his agreement to handle extra
administrative duties was based on his belief he would be fairly compensated by being promoted.
He pointed out the inconsistencies in the review criteria and contended that there is no validity to
the adequacy of the review process.

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 Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

In his appeal statement, among other things, Complainant contends that the Agency’s contention
that he admitted that his EEO participation occurred after his last RPES panel, and that he was not
a member of the protected class at the time his RPES was conducted is inconsistent with his
affidavit submissions. He explained that the FAD referred to the date he provided testimony in an
affidavit and does not correspond to the first date of his involvement in a 2015 EEO case in which
he was named as a witness.

He contends that the complete absence of testimony or documentation from individuals involved
in the rating process is a major omission with the entire investigative report; and that with the
exception of S1, no other individuals providing documentation for the investigation and testimony
in the factual background, were involved in the decision process.

Complainant also contends that the Agency failed to follow the applicable law based on the
responses from S1 and S2 regarding his promotion, and that there was “no objective information
to support the panel decision for no promotion in the Report of Investigation (ROI).” According
to Complainant, this demonstrates a complete lack of consensus in the rationale for his non-
promotion.

In its appeal brief, among other things, the Agency reiterates its FAD’s position that Complainant
failed to demonstrate a nexus between his prior EEO activity and the employment action adding
that by its very nature, participating in EEO activity requires some active participation from
Complainant.
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They state that someone else’s EEO activity in which Complainant may have been referenced
cannot lead to reprisal of Complainant as he did not participate in a protected activity or oppose
discrimination by merely being referenced. The Agency also asserts that the panels are
confidential, but in this case, the conclusions of the panels were reviewed and there was no
indication that either panel failed to follow procedures.

STANDARD OF REVIEW

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, at Chapter 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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a prima facie case of discrimination for an allegation of reprisal, Complainant
must show: 1) that he engaged in protected activity, (e.g., participation in a EEO proceeding as a
witness); 2) that the alleged discriminating official was aware of the protected activity; 3) that he
was disadvantaged by an action of the Agency contemporaneously with or subsequent to such
participation; and 4) that there is a causal connection, or nexus, between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass), aff ‘d,545 F.2d 222 (151 Cir. 1976).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
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Both S1 and S2 explained that, for the period in question, i.e., 2015 and 2016, two separate panels
evaluated Complainant’s work and determined that he should remain “in grade” based on an
evaluation of the scope, complexity and impact of his research.

In an effort to show pretext, Complainant asserted that the evaluation panel system was flawed
and lacked objectivity because of the variety in rankings during his years of work and what was
highlighted or not highlighted during his various evaluations. We find, however, that even if
Complainant is correct that the system is imperfect, the evidence does not support his assertion
that he was subjected to discrimination based on reprisal. He may be the victim of a system that
albeit flawed, is not discriminatory. We also note Complainant’s assertion that his coworkers
received promotions while he did not, but this does not indicate that the Agency’s explanation was
a pretext. According to S2, the outcome of RPES panels is based on the same criteria for everyone,
and that the length of time in the Agency is not a consideration. Complainant did not provide any
persuasive evidence that his co-worker’s higher rankings were based on Complainant’s prior EEO
activity. Furthermore, we note that both S1 and S2 asserted that they were unaware of his EEO
activity. Also, the evidence shows that Complainant’s evaluations were conducted by two different
panels, and he did not establish how both panels were aware of his EEO activity, which took place
in 2015, when he testified as a witness. 2

We note Complainant’s contentions on appeal about the alleged deficiencies in the Agency’s
investigation and conclusions in its FAD; however, Complainant did not request a hearing and
avail himself of the discovery process which would have allowed for an examination of the
credibility or lack thereof of the Agency’s witnesses. Therefore, we can only evaluate the facts
based on the weight of the evidence presented to us. Complainant has failed to demonstrate by a
preponderance of the evidence that discrimination or retaliation occurred.

CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
we AFFIRM the Agency’s final decision.

2 The record indicates that since 1994, seven different panels evaluated Complainant’s work, and
all concluded that he was appropriately graded as a GS- 13.
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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 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.
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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

April 16, 2019
Date