[Redacted], Deandre C., 1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jul 14, 2020

Appeal No. 2019005476 (E.E.O.C. Jul. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deandre C.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 2019005476 Agency No. OIG-2018-00821 DECISION On August 26, 2019, 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 July 25, 2019, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Special Agent-in-Charge/Criminal Investigator (ASAC), GS-14, at the Agency’s Office of Inspector General (OIG) Investigations Liaison and Special Operations Division (ILSOD) in Washington, District of Columbia. On September 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (white), age, and reprisal for prior protected EEO activity when: 1. On June 14, 2018, he learned he was not selected for the Supervisory Criminal Investigator, Special Agent-in-Charge (SAC), GS-15, USDA, OIG Sensitive 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. 2019005476 2 Investigations Office (SIO) position advertised under vacancy announcement USDA-OIG-18-0013; 2. In April 2016, as a GS-13, he was assigned to perform higher level duties than two of his colleagues that were GS-14s; and 3. On an unspecified date, he was not selected for the Supervisory Criminal Investigator, SAC, GS-15, for ILSOD position advertised under vacancy announcement USDA-OIG-17-0010.2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent results: Regarding his basis of reprisal, Complainant attested that he served as a witness to a hostile work environment complaint in 2018. Complainant’s first-level supervisor (Supervisor1), a Supervisory SAC, stated that he was aware of Complainant’s prior EEO activity because they both served as witnesses in the complaint. Complainant’s second-level supervisor (Supervisor2), the Deputy Assistant Inspector General for Investigations, denied knowledge of Complainant’s prior EEO activity. The Assistant Inspector General for Investigations (AIG) attested that she was aware of Complainant’s participation in the prior EEO activity. Complainant applied for the Supervisory SAC position in claim (1) on December 13, 2017. He asserted that he was well-qualified for the position because he had acted in and supervised the majority of the duties of the position and he had outstanding performance appraisals. He stated that his application scored the third-highest of 31 referred applicants, but he did not receive an interview. He stated that six candidates were interviewed, and the candidates interviewed lacked law enforcement and criminal investigation experience. He learned of the Agency’s selection on June 14, 2018 and acknowledged the selectee was a white male. Supervisor2 served as the selection official for the position at issue in claim (1). He explained that he formed two interview panels, as per protocol. He attested that he discussed the panel composition with Human Resources (HR) and AIG to ensure the panels reflected diversity and experience. Supervisor2 attested that he developed the filtering criteria, which he vetted through a Human Resources Specialist (HR Specialist), to narrow the selection pool to six candidates who would be interviewed. He explained that Complainant did not meet the filtering criteria because he was a new GS-14 manager and had never served as a GS-15. From the six originally interviewed, the two candidates who advanced to a second interview both had previously served in OIG offices and the selectee was a candidate whom Supervisor2 previously knew from when they both worked at the Department of Homeland Security’s OIG department. 2 The Agency noted that claims (2) and (3) were brought to an EEO Counselor more than 45 days after their occurrence and were, therefore, untimely. However, the Agency found the record did not establish Complainant had constructive knowledge of the EEO timeframes and accepted these claims in the interest of justice and fairness. 2019005476 3 Regarding claim (2), Complainant attested that management asked him to address difficult projects and assignments, i.e., projects outside of his grade, because they knew he could provide the best product and there was a lack of supervisory confidence in the capabilities of his GS-14 colleagues. Complainant further attested that, in addition to his duties as a Desk Officer, he conducted investigations and offered examples of various major projects on which he took the lead for the agency. Complainant acknowledged that, at his own request, a HR Specialist performed a desk audit of his position and determined that his position was appropriately graded as a GS-13. However, Complainant alleged that his position was inappropriately graded due to Supervisor2’s influence over HR Specialist. Supervisor1 attested that he agreed with Complainant that the position should have been classified as a GS-14, but HR conducted a desk audit and determined it was a GS-13. Supervisor2 denied that Complainant was assigned GS-14 duties and stated that, in November 2015, HRMD determined that the Desk Officer position should be classified as a GS-13, rather than as a GS-14 position, as it had been previously classified. He explained that Complainant was hired as a non-supervisory, GS-13 Desk Officer in April 2016 and, in May 2016, Complainant and one of his colleagues questioned the position classification. HR conducted a review of the position and determined it should remain as a GS-13. He noted that it is management’s discretion to assign work and management must address operational concerns. He further noted that grade levels are not determined by the volume of work, but by the complexity and analytical challenge of the assigned work. He attested that the work assigned to Complainant was within the complexity and scope of GS-12 and GS-13 level work. AIG explained that, in 2008, she assumed supervision of the Desk Officers and, at that time, the positions were classified as GS-14s, but, over the years, there was staff attrition and management determined more Desk Officers had to be hired. HR reviewed and classified the position as a GS- 13 and, subsequently, Complainant and another Special Agent were hired as GS-13 Desk Officers. She attested that she was aware of an alleged discrepancy between the duties and classification of the desk officer positions, but a second desk audit determined that the position was at a GS-13 level. She explained that Complainant was assigned Desk Officer duties and was assigned investigations due to the lack of staff support. Regarding the position at issue in claim (3), Complainant attested that he learned he was not selected for the position on or about December 7, 2016. He asserted that he was well-qualified for the position because of his knowledge, skills, and abilities gained through the years of experience as a GS-14 Criminal Investigator at various agencies. He sated that he was not interviewed for the position and noted the selectee was African-American. Supervisor2 was also the selecting official for the position at issue in claim (3). He stated that he worked with HR Specialist to advertise the position, determine the assessment tools, and form the panel. Supervisor2 obtained concurrence from AIG and HR to use a single panel. 2019005476 4 A Special Agent-in-Charge (SAC1) reviewed the applications and conducted an initial filtering based on the candidates’ experience and the specialized experience identified in the vacancy announcement. She forwarded 34 applications for a second filtering and Supervisor1 further filtered the candidates based on prior or current supervisory experience, the number of years of supervisory experience, whether the supervisory experience was at the headquarters or field capacity, prior or current work experience at an OIG office, and at least four years’ supervisory experience in an OIG office. Based on these criteria, five candidates advanced to the interview stage. He explained that Complainant did not advance to the interview stage because he did not meet these criteria. AIG attested that Complainant was not selected to proceed to the interview round because he had not served in a GS-14 supervisory position. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. The instant appeal followed. On appeal, Complainant makes numerous assertions, including an additional claim of non-selection as an EEO violation, and reiterates his experience and qualifications for the positions at issue. He also challenges the adequacy of the filters used to narrow down the candidate lists and the sufficiency of the position review. He also asserts that his complaint is an alleged Equal Pay Act violation. In response, the Agency argues that a de novo review would support its final decision and asks that we adopt its findings and conclusions. 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”). Complainant has alleged that the Agency treated him disparately with respect to his not being selected for two positions and having been assigned GS-14 level work while being in a GS-13 level position. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2019005476 5 For a complainant to prevail, he must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that, with respect to the supervisory GS-15 positions at issue, Complainant was not selected for an interview for the position at issue in claim (1) because he was a new GS-14 manager and had never served as a GS-15, and he was not selected for an interview for the position at issue in claim (3) because he did not meet the screening criteria, including related supervisory and OIG experience. With respect to Complainant’s position classification, the Agency explained that HR performed a desk audit which concluded that Complainant’s position was properly classified as a GS-13 level position. Although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non- discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. 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 decision. 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. 2019005476 6 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. 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. 2019005476 7 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 July 14, 2020 Date