Herb S.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Feb 28, 2017

0120141055 (E.E.O.C. Feb. 28, 2017)

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

Herb S.,1
Complainant,

v.

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

Appeal No. 0120141055

Hearing No. 430-2012-00069X

Agency Nos. RD-2010-00875P,
RD-2011-0075S

DECISION

On January 17, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s final action 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 order.

BACKGROUND

Complainant worked as a Business Program Specialist at the Rural Development Office in
Raleigh, North Carolina. On November 19, 2010, Complainant filed an EEO complaint in
which he alleged that the State Director discriminated against him on the basis of race
(African-American) and retaliated against him for prior protected EEO activity in connection
with the following claims:

1. On December 8, 2009, the State Director did not select him for the position of Director
of the Business and Cooperative Programs Division, GS-13; and

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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2. In December 2009, the State Director forced Complainant to accept the position of
Area Director at the Rural Development Office in Henderson, North Carolina.2

On December 23, 2010, and later amended, Complainant filed a second EEO complaint in
which he claimed that he had been discriminated against on the bases of race, sex (male), and
in reprisal for prior protected EEO activity when:

3. On November 4, 2010, the State Director chose not to return him to his previous
position as a Business Development Specialist, GS-12, after he had applied for that
position; and

4. On June 21, 2011, the State Director subjected Complainant to a hostile work
environment because of his prior EEO activity, as illustrated by the following incidents:
a) management refused to speak to him directly and instead repeatedly called a member
of his staff concerning his duties performed;
b) management reassigned the only African-American male trainee and halted his
training without Complainant’s input;
c) his written request to provide operational duties went unanswered;
d) he was excluded in private discussions, not privy to ongoing duty selections
involving his staff, and his staff duties were redirected without his approval; and
e) he was passed over for reassignments.

The State Director averred that the Assistant State Director and one of the Area Directors, both
of whom were subject matter experts, reviewed the application packages and had prepared a
selection certification document showing that Complainant and the Selectee were the two best
qualified candidates. Hearing Transcript, Volume 2 (HT2) 13, 22-24, The first criterion,
which the State Director stated he considered most important, was the applicants’ knowledge of
commercial credit and lending practices. Investigative Report (IR) 80, 86-88, 97, 99.
Complainant was given an overall score of 21, while the Selectee was given a score of 23.
Both were given the maximum score on knowledge of commercial credit and lending. IR 136-
38; HT2 24-25. At the hearing, the State Director testified that he did not interview the
applicants; rather, he made his decision based on the rating scores from the certification list.
Hearing Transcript, Volume 1 (HT1) 72, 75, 114-16. He also testified that he selected
Complainant for the Area Director position in Henderson, North Carolina at the same time he
chose the Selectee for the Business and Cooperative Programs Director position. HT1 93.

2 The Agency dismissed claim (2) for failure to bring the matter to the attention of an EEO
Counselor within 45-days of its occurrence and for failure to show that it was like or related to a
matter that had been raised with an EEO Counselor. IR 2, 43, 80, 83-85; HT1 147; Hearing
Exhibit (HE) 29, 30. Complainant raised no challenges to the Agency's dismissal; therefore,
the Commission will not address that claim further in this decision.

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Approximately eleven months later, Complainant’s previous position became vacant again.
Complainant applied, knowing that if he were to be selected he would have to take a
downgrade from GS-13, to which he had been promoted the year before, to GS-12. The State
Director stated in his affidavit and later testified that he declined to place Complainant in his
former position because of the salary downgrade and because he did not wish to have to re-
advertise the Area Director position again. IR 80; HT 120-25, 150-51.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing and in accordance with his request, the AJ assigned to
the case held a hearing on December 13 and 14, 2012.

On November 4, 2013, the AJ issued a decision finding discrimination with respect to claim
(1) only. The AJ determined that Complainant had established a “mixed motive” on the part
of the State Director in not promoting him to Director of Business and Cooperative Programs,
noting that although the State Director’s concerns about how Complainant’s prior EEO activity
had caused dissension had factored into his decision, the Selectee for that position was highly
qualified nevertheless. The AJ determined that Complainant was entitled to declaratory relief,
injunctive relief, and attorney’s fees, but not back pay, equitable remedies, or compensatory
damages. AJ’s Decision, pp. 15-17. In accordance with her findings and conclusions, the AJ
awarded Complainant $32,022 in attorney’s fees and $1,384.93 in costs. AJ Decision, p. 19.
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 proved 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, Complainant challenges the AJ’s findings and conclusions only with respect to
claims (1) and (3). He contends that the AJ erred with respect to claim (1) because the Agency
failed to meet its burden to prove in a mixed motive case that the State Director would have
chosen the Selectee even if discrimination had not been a factor in his decision. Appeal Brief,
pp. 2-4, 16-24, 28-33. He also contends that the AJ erred in not drawing an adverse inference
against the Agency for its destruction of documents pertinent to the selection process. Appeal
Brief, pp. 3, 24-27. In addition, Complainant challenges the AJ’s finding of no discrimination
on the merits regarding claim (3). Appeal Brief, pp. 4, 34-35. As to claim (4), Complainant
does not challenge the AJ’s finding that Complainant failed to establish that he was subjected to
a hostile work environment on June 21, 2011 because of his previous EEO activity.
Complainant acknowledged that the Agency had awarded him attorney’s fees and costs.
Appeal Brief, p. 1. Consequently, the only matters now before us are claims (1) and (3). The
Agency did not submit any statement or brief in opposition to Complainant’s appeal.

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STANDARD OF REVIEW

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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selections
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those decisions. See Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim,
Complainant would have to prove, by a preponderance of the evidence, that the State Director
was motivated by unlawful considerations of his race and previous EEO activity in connection
with the two nonselections. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000). In circumstantial-evidence cases such as this, Complainant can establish motive by
presenting evidence tending to show that the reasons articulated by the State Director for not
selecting him were pretext, i.e., not the real reason but rather a cover for race discrimination
and reprisal. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

Complainant could demonstrate pretext in nonselection decisions by showing that his
qualifications for the position were plainly superior to those of the Selectee. Hung P. v.
Department of Veterans Affairs, EEOC Appeal No. 0120141721 (December 3, 2015). Other
indicators of pretext include discriminatory statements or past personal treatment attributable to
those responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected-group lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov.12, 2015).

December 2009 – GS-13 Director, Business and Cooperative Programs Division

When asked by the EEO investigator why he believed that the State Director’s decision to
bypass him for the Business and Cooperative Programs Division Director position was
discriminatory, he averred that a far less qualified white male was chosen in his place and
because the State Director had made comments to the effect that since he was African-
American, it would not be proper if he promoted another African-American to be his deputy.
IR 69-70.

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Three Executives from private financing institutions that had done business with the Rural
Development Offices in North Carolina over the years had written to the State Director
recommending that Complainant be selected. IR 172-75. One of those Executives testified
that during his fifty-year career in financial management, he considered Complainant to be one
of the top ten individuals from the Agency that he had worked with, and that when compared
to Complainant, the Selectee as a “junior financial type who had not been successful in banking
and seemed to have more of a political orientation than to do quality lending.” HT1 186, 190-
91. He further testified that he had asked another Executive if he had a chance to say anything
positive about Complainant when he met the State Director and that this individual replied that
the State Director, “did not express an interest in pursuing that conversation and seemed to
explain that since he was African-American, it would not be proper form him to put another
African-American into a top position in the State Office.” HT1 192-94. Although the
Executive’s hearing testimony is hearsay, and of limited probative value, it does tend to
provide independent corroboration of Complainant’s assertion concerning the State Director’s
reluctance to put another African-American in a high-level post. See Trina C. v. U.S. Postal
Service, EEOC Appeal No. 0120142617 (Sept. 13, 2016) (hearsay evidence has some
probative value and is consequently admissible in an EEO administrative proceeding).

The AJ found other evidence of an unlawful motivation on the part of the State Director,
primarily from his hearing testimony. 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, Section VI, Subsection B. (Aug. 5, 2015). Through examination, both direct and
cross, the State Director testified that he had concerns about “dissension” that Complainant had
caused when he was in the Business and Cooperative Development Programs Division. When
pressed, the State Director admitted that the cause of the dissension attributed to Complainant
was the fact that he had filed EEO complaints, both formally and informally, and had
expressed his opposition to what he perceived to be discriminatory behavior on the part of his
former supervisor. In particular, the State Director was concerned that if he named
Complainant the Program Manager, he would not be able to bring the former supervisor back
as a consultant. HT1 104-06, 108-13, 117-19, 135-37; HT2 50-53, 55-56, 61-63.

Based on State Director’s own testimony, the AJ concluded that the State Director chose the
Selectee not only because of his concerns regarding the impact of Complainant’s prior EEO
activity upon the ability of the Business and Cooperative Programs Division to do its job, but
also because the Selectee was highly qualified for the job. This was the reason why the AJ
characterized the case as a “mixed motive” situation. A mixed-motive analysis applies to cases
in which there is a finding that discrimination was one of multiple motivating factors for an
employment action, i.e., in which the Agency acted on the bases of both lawful and unlawful
reasons. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory, EEOC Notice No. 915.002 § III.B.2 (Jul. 14, 1992), as modified EEOC
Notice No. 915.002 (Jan. 16, 2009). Under Title VII, a violation is established “when the
complaining party demonstrates that race, color, religion, sex, or national origin was a
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motivating factor for any employment practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(m). Once a Complainant demonstrates that discrimination was
a motivating factor in the Agency’s action, it is the Agency’s burden to demonstrate that it
would have taken the same action even if it had not considered the discriminatory factor.
Genny L. v. Dept. of Defense (Defense Contract Audit Agency), EEOC Appeal No.
0120122795 (Feb. 23, 2016).

Upon further review, we find that the AJ properly found that the Agency met its burden.
When hiring or promoting, agencies have broad discretion to choose among equally qualified
candidates as long as the selection is not based on unlawful considerations. Complainant v.
Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may
select candidates with fewer years of experience if they believe that such candidates are best
qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC
Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the
preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland
Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). In this case, the AJ concluded after
a hearing that there was no showing that Complainant’s qualifications were plainly superior to
those of the Selectee. Both candidates had extensive experience in lending and credit, so much
so that they were given the same high rating on that selection criteria by the Area Director and
Assistant State Director. Their qualifications were so close that even if the discrimination
factor did not exist, the choice of the Selectee would be well supported by the evidence of
record.

We likewise find that the AJ did not abuse her discretion in declining to draw an adverse
inference as a result of alleged destruction of documents, since there was other evidence to
support the State Director’s assessment of the Selectee’s qualifications, namely the hearing
testimony of the Area Director who evaluated the applications. See Kenyatta S. v. Dept. of
Justice (Federal Bureau of Prisons), EEOC Appeal No. 0720150016, n.3 (Jun. 3, 2016) (party
charging an AJ with abuse of discretion invariably faces a very high bar). We therefore find,
as did the AJ, that the State Director would have made the same selection even absent
discrimination, and consequently, that Complainant is entitled to no additional relief beyond
the compensation for attorney’s fees and costs that he had already received.

November 2010 – GS-12 The Loan Specialist Position

The AJ found on the basis of the State Director’s hearing testimony that he chose Selectee-2
for the Loan Specialist Position because he did not think it was appropriate for Complainant to
take a demotion and because he did not want to go through the task of having to advertise and
fill another vacancy for the Area Director position at Henderson. On this issue, the AJ found
the State Director to be a credible witness. When asked why he believed that the State
Director’s decision not to transfer him back to his previous GS-12 position was motivated by
considerations of his race and prior EEO activity, Complainant insisted that he was far more
qualified than Selectee-2. IR 70. The AJ found this to be true, since Complainant had been
promoted to management from that position. The State Director acknowledged as much.
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However, Complainant had not presented any testimony or affidavits from other witnesses or
documents which contradicted the State Director’s proffered explanation for not choosing
Complainant or which tended to undermine either the State Director’s veracity or credibility.
We therefore agree with the AJ that Complainant had not met his burden to show, by a
preponderance of the evidence, that either his race or previous EEO activity had factored in to
the State Director’s decision not to transfer him back to the Business Program Specialist
position that he held until December 2009.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action implementing the AJ’s
decision finding that Complainant was discriminated against with respect to claim 1, but
finding that he had not established discrimination with respect to claims 3 and 4.

ORDER

To the extent it has not already done so, the Agency is ordered to take the following corrective
action within one hundred and twenty (120) days of the date of this decision becomes final:

1) The Agency shall pay Complainant's reasonable attorney’s fees in the amount of
$32,022 and costs in the amount of $1,384.93;

2) The Agency shall take corrective, curative, or preventative action to ensure that similar
violations of the law will not recur. See 29 C.F.R. §1614.501(a)(2);

3) The Agency shall provide additional eight-hour anti-discrimination management training
for State Director;

4) The Agency shall provide eight-hour anti-discrimination training for employees in the
Business and Cooperative Program Division; and

5) The Agency shall post a notice that the Agency has been found to have discriminated
against an employee at the USDA Office of the State Director in Raleigh, North
Carolina.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1016)

The Agency is ordered to post at its Rural Development Office in Raleigh, North Carolina
copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
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authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted
for 60 consecutive days, in conspicuous places, including all places where notices to employees
are customarily posted. The Agency shall take reasonable steps to ensure that said notices are
not altered, defaced, or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within 10 calendar days of the expiration of
the posting period.

ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations - within
thirty (30) calendar days of the date this decision was issued. The Agency shall then process
the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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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 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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
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local office, facility or department in which you work. 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

February 28, 2017
Date