Leona L.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 13, 2020

2020001005 (E.E.O.C. Aug. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leona L.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020001005 Agency No. FS-2018-00251 DECISION On November 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND On January 12, 2018, Complainant, a Fire Engine Operator Captain, GS-08, located on the Stanislaus National Forest (“Stanislaus NF”) in Groveland, California, filed a formal EEO complaint claiming the Agency discriminated against her based on sex (female) when, on November 7, 2017, she learned that she was not selected for the GS 8/9 Fire Prevention position at the Agency’s Stanislaus National Forest, advertised under Vacancy Announcement Number 17- FIREFALL-PREV(NS)89G. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 24, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The instant appeal followed. 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. 2020001005 2 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. We determined that in this case, the AJ properly exercised discretion in issuing a decision without a hearing, for the reasons more fully elaborated below. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The AJ found finding the following pertinent undisputed facts were established during the investigation of the complaint. During the relevant period, the District Ranger was Complainant’s first line supervisor. He served as Complainant’s first and second line supervisor during the month of November 2017. On August 11, 2017, the Agency posted a vacancy announcement number 17-FIREFALL- PREV(NS)89G via USA Jobs website for the Fire Preventive position, GS-08/09, to be located on the Stanislaus NF. 2020001005 3 The main duties for a Forestry Technician (Fire Prevention (“FP”) position involve planning and execution of fire prevention, suppression, and education programs. Prior wildland firefighting experience is a mandatory requirement of this position. Fire prevention and suppression management comprise 40% of the FP position, with the other 60% involving fire prevention plan development. Complainant applied for the Fire Prevention position along with two other applicants, and they were interviewed by video conference in October 2017. The selecting official for the Fire Prevention position was the Forest Supervisor on the Tahoe NF. He had no professional relationship with Complainant. The selecting official did not participate in the interview process. He did not know who served on the recommending panel nor did he know the number of panel members. The interview panel consisted of three panel members including Complainant’s supervisor. Following the interviews, the panel recommended to the selecting official that the selectee be chosen for the Fire Prevention position. The AJ noted that the selecting official stated that he chose the selectee for the subject position because he was “well qualified for the position, as demonstrated in the merit-based assessment of his application by a subject matter expert, reference check, and interview.” Complainant’s supervisor (male) stated that Complainant’s responses to the interview questions “were very short, and didn’t go into much depth. We usually allow 30 minutes for each interview, and this particular interview only used 20 minutes of the allotted time.” He further stated that the panel recommended the selectee for the subject position “based on his interview and his resume and his reference checks he stood out. He addressed the tasks of the job. All three interviewees had some Fire Prevention experience. [Selectee] was currently working in prevention and had some good in-depth responses to the interview questions.” The record reflects that the panel ranked the selectee as their first choice, the second choice was a named female applicant, and Complainant was their third choice. The Administrative Officer (female) was part of the panel. She stated that “of the three candidates that we interviewed, [Complainant’s] application showed the least amount of directly related experience.” Furthermore, the Administrative Officer stated that the panel recommended the selectee for the subject position because “he had the best application, references, and interview.” The AJ determined Complainant did not offer anything to rebut the Agency management’s legitimate, nondiscriminatory reasons for recommending that the selectee be selected for the subject position based on his experience, other than asserting that she was more qualified because she had more years of experience than the selectee. 2020001005 4 However, after a careful review of the record, we find that Complainant failed to show that her qualifications for the position were plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Upon review, the AJ found, and we agree, that there is no evidence that Complainant’s sex played a role in the selection decision. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment finding no discrimination was established. 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). 2020001005 5 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 August 13, 2020 Date