Efrain B., Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

May 17, 2017

0120151866 (E.E.O.C. May. 17, 2017)

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

Efrain B.,
Complainant,

v.

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

Appeal No. 0120151866

Agency No. FS-2014-00587

DECISION

On May 14, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 15, 2015, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forestry
Technician, GS-0462-09, with the Agency in Nevada City, California.

The Agency posted a vacancy under Vacancy Announcement Number 14-05710000-3674G-PR
for the position of Forest Aviation Officer, GS-2101-11, in Nevada City, California from
February 14, 2014 – February 28, 2014. According to the posting, the Forest Aviation Officer
has management and oversight of the aviation programs to include support of permanent or
temporary retardant bases, smokejumper bases, Type 2 National Helicopter, Call When Needed
light fixed wing and/or helicopter, exclusive-use aircraft, and air attack program. The duties of
the position include providing leadership, coordination, guidance, and direction to aerial project
and fire management activities. The position also requires integrating operations of the Forest

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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Aviation Operations program and the Forest Management Programs and serving as technical
authority for the integrated use of aviation activities. Complainant timely applied for the Forest
Aviation Officer position.

A panel of three Subject Matter Experts (SMEs) consisting of SME 1, SME 2, and SME 3 was
convened to evaluate applications received for the position. The panel provided written
assessments of the applications and conducted reference checks for the position. Thereafter
interviews were conducted by the Zone Fire Management Officer located in Truckee, California
(Panel Member 1); Fire Planner/Apprentice Coordinator located in Nevada City, California
(Panel Member 2); and the Assistant Forest Fire Management Officer located in Nevada City,
California (Panel Member 3). The hiring managers, the Forest Fire Chief and the Assistant
Forest Fire Management Officer, discussed the applicants with the Deputy Forest Supervisor and
they agreed on three candidates to recommend to the Deputy Director located in Vallejo,
California who served as the Selecting Official (SO). The recommendations were sent in
alphabetical order, with no ranking. Complainant was among those recommended. The SO
chose the Selectee as his first choice and Complainant as an alternative. The Deputy Regional
Forester for Operations located in Vallejo, California concurred on the selection decision.

On September 24, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of sex (male) when:

On May 21, 2014, he learned that he was not selected for the GS-2101-11, Forest
Aviation Officer position, which was advertised under Vacancy Announcement Number
14-05170000-3674.

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 (AJ). 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.

ANALYSIS AND FINDINGS

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”).

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Complainant claims he is more qualified than the Selectee because his fire qualifications “far
exceed” the Selectee’s fire qualifications; he had the requisite Air Tactical Group Supervisor
(ATGS) certification and the Selectee did not; the panel of three Subject Matter Experts believed
he was better qualified for the position than the Selectee; and he had all positive reference checks
while the same could not be said for the Selectee. Complainant contends the Selectee was
chosen in order to support Agency recruitment, selection, and placement of female employees.

During the EEO investigation, SME 1, SME 2, and SME 3 all stated that Complainant was more
qualified for the position because of his ATGS qualification and they note the Selectee did not
have this qualification. SME 1 stated that other than the ATGS qualification, the Selectee and
Complainant demonstrated very similar experience levels. SME 1 stated that Complainant and
the Selectee have different strengths in different areas. He noted that the Selectee has a stronger
background in helicopters and their management. In contrast, he stated Complainant has
strengths in the tactical fixed wing delivery and incident airspace management. SME 2 also
stated that Complainant and the Selectee had similar skill levels noting that the Selectee was
highly experienced in rotor wing operations and Complainant was highly experienced in fixed
wing (airplane) operations. SME 3 states that Complainant had a higher degree of fire line
qualifications than the Selectee and more diverse and applicable firefighting experience.
Although SME 1, SME 2, and SME 3 made these statements during the EEO investigation, what
was actually forwarded in the selection process were worksheets discussed herein that simply
listed strengths and weaknesses of each candidate (and provided no direct comparisons of which
candidate was superior to another candidate).

Panel Member 1, Panel Member 2, and Panel Member 3 explain that they were members of the
panel which interviewed Complainant and the Selectee, but they state that they were not
involved in making the final selection decision. The panel members state they were not aware of
the reason the Selectee was chosen over Complainant. PM3 states she was disappointed by the
decision because of her knowledge of Complainant’s work ethic, knowledge, and experience.
PM3 states that the vacancy outreach did not require the selectee to be a qualified ATGS.

The SO notes that he received the information for the three recommended candidates unranked
and in alphabetical order. He explains that after reviewing the applicants’ information, he
requested additional information from the Deputy Forest Supervisor who provided him with
additional information regarding the roles and responsibilities of the position. The SO states that
after reviewing all of the candidates’ application materials, assessments, reference checks, and
interview responses, he chose the Selectee as his first choice and Complainant as an alternative.
He noted that the Deputy Regional Forester for Operations concurred. The SO states that the
Selectee had more “aviation qualifications and experience, more experience with different
aircraft, and more contracting skills.” The SO did not recall that ATGS certification was
required for this vacancy.

The Deputy Forest Supervisor notes that the SO contacted him after receiving the selection
packages for the Forest Aviation Officer position. He states they discussed the role and key
responsibilities of the position. The Deputy Forest Supervisor states that he told the SO that this
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position was important in the contracting and coordination of air resources and that there was
very little direct supervision or direct fire line suppression responsibilities. He recalls that the
Selectee had “many more years of experience in aviation, with more experience contracting and
coordinating the use of various types of aircraft.” In addition, the Deputy Forest Supervisor
states that certification as an ATGS was not required for this position.

In rebuttal, Complainant notes that he received better references and more favorable candidate
review notes than the Selectee. Complainant contends that he has more diverse aviation
experience that the Selectee. He notes the Selectee’s experience was helicopter specific, while
his experience was from fixed-winged airplanes and helicopter aircrafts. Complainant also states
that ATGS qualification is required for the Region 5 Forest Aviation Officer because Region 5
hosts an Air Attack aircraft which requires an ATGS to staff the airplane and responds to local,
regional, and national emergencies.

Upon review, we find Complainant established a prima facie case of discriminatory non-
selection. Complainant applied for the Forest Aviation Officer position, he was found qualified
as evident by his certification on the Best Qualified List. Complainant was not selected for the
position and the Selectee was outside his protected class.

The Agency presented legitimate, nondiscriminatory reasons for its actions. The Agency asserts
the Selectee was chosen over Complainant because she had more diverse aviation qualifications
and experience and more contracting skills. The Deputy Forest Supervisor notes that the
Selectee had many more years of experience in aviation, with more experience contracting and
coordinating the use of various types of aircrafts. The Deputy Forest Supervisor expounds that it
was important for the Selectee to have strong contracting and coordination of air resources skills.
The SO asserts that the Selectee possessed a stronger skill set than Complainant in these crucial
areas of expertise. In his affidavit, Complainant acknowledged that the Selectee had more years
of contracting experience but claimed that they both shared COR Level II authority. However,
the record reveals that at the time of the selection the Selectee possessed a higher COR Level III
authority while Complainant was at the Level II COR, a certification he received in July 2013.

While we acknowledge that all the SMEs believed that Complainant was better qualified than the
Selectee, we note that they were not the ultimate hiring officials. Rather, the candidate
assessment worksheets completed by the SMEs were forwarded along to the SO, without any
ranking of the applicants. The candidate assessment worksheets show that one of the SMEs
listed over a dozen strengths for the Selectee and no weaknesses. Another worksheet from SME
2 showed similar strengths for the Selectee and listed only two weaknesses: (1) not qualified as
AOBD (Air Operations Branch Director)/ATGS and (2) aviation experience limited to helicopter
operations. The record reveals that SME 2 listed over a dozen strengths for Complainant and
one weakness: limited aviation experience with multi resources.

Additionally, we recognize that one of the Selectee’s three references gave her a poor
recommendation while Complainant received three strong references. However, we note that the
poor reference was by a supervisor who supervised the Selectee while she was a GS-8 Helicopter
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Captain. The other two references for the Selectee were strong, including one from the Forest
Fire Chief who was one of the Hiring Managers for the position at issue. The Forest Fire Chief
supervised the Selectee while she was a Helicopter Superintendent from April 2001 to the time
of the hiring at issue. The reference notes that the Selectee was detailed as a Forest Aviation
Officer a couple years ago and did an “excellent” job during the detail. While we recognize that
Complainant also served a detail as Forest Aviation Officer and one of his references mentioned
that detail, we note that none of his references commented on his job performance while he was
detailed as a Forest Aviation Officer.

With regard to Complainant’s contention that the Selectee was required to have ATGS
qualifications, the Agency noted that Complainant stated Region 5 is only required to have an
ATGS present to staff the Air Attack aircraft. The Agency notes that at no time did Complainant
assert that the ATGS must also be the Forest Aviation Officer or that the Forest Aviation Officer
must be the ATGS. Additionally, both the SO and the Deputy Forest Supervisor stated that
certification as an ATGS was not required for the selection at issue. Moreover, we note that the
Vacancy Announcement did not list ATGS qualification as a requirement for the Forest Aviation
Officer position. While the record reveals that the SMEs weighed Complainant’s ATGS as a
distinguishing factor in Complainant’s favor, we find Complainant failed to demonstrate that
ATGS qualification was a prerequisite for the Federal Aviation Officer position.

Upon review, we find Complainant failed to show by a preponderance of evidence that the
Agency’s actions were a pretext for sex discrimination. Moreover, we note Complainant has not
shown that his qualifications for the Forest Aviation Officer position were so superior to those of
the Selectee so as to show that the Agency's reasons were pretextual.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be
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submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. The requests 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
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 (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

May 17, 2017
Date