[Redacted], Donita B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Foreign Agricultural Service), Agency.

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2021000612 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donita B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Foreign Agricultural Service), Agency. Appeal No. 2021000612 Hearing No. 570-2018-00799X Agency No. FAS-2016-00635 DECISION On October 28, 2020, 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 September 28, 2020 final order concerning her 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 International Trade Specialist, GS-13, in the Agency’s Office of Agreements and Scientific Affairs (OASA) in Washington, D.C. On June 17, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African American), national origin (African American), color (light brown), age (47), and/or in reprisal for prior protected EEO complaints when: 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. 2021000612 2 1. on May 3, 2016, Complainant learned that the Agency failed to select her for a Supervisory Program Manager, GS-14, position, announced under Vacancy Announcement # FAS MP 2016-0107; and 2. on March 24, 2016, Complainant learned that the Agency failed to select her for a detail to a Special Assistant to the Deputy Administrator position although the Agency informed Complainant it cancelled the position, but it later selected someone to fill the position. The Agency accepted Complainant’s complaint for EEO investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. Following a dispositive motion from the Agency, citing untimely formal complaint, and opposition from Complainant, the assigned AJ found that procedural dismissal was appropriate for untimely formal complaint. However, in the alternative, the AJ issued a decision by summary judgment on the merits of the case, concluding no discrimination or unlawful retaliation was established. The AJ found no discrimination. Specifically, as to claim (1), the AJ concluded, “[w]hile Complainant contends her qualifications are far superior, she failed to adduce evidence to support her position.” Regarding claim (2), the AJ stated that Complainant failed to produce evidence that the legitimate, nondiscriminatory reason articulated by the Agency for cancellation of the detail was pretextual. The AJ noted that two responsible management officials (RMOs), S1 and S3, were cited as RMOs in prior complaints by Complainant, but that Complainant also failed to establish a retaliatory motive here. On September 28, 2020, the Agency issued a final decision fully implementing the AJ’s decision. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS While concluding that the complaint could be procedurally dismissed as untimely filed, the AJ also addressed the merits of the claims. Therefore, we will not address the procedural dismissal. 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. 2021000612 3 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. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 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 Complainant to prevail, she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, Complainant stated that that she was better qualified than either individual selected for the aforementioned positions. 2021000612 4 Complainant stated that management allowed the selectee for the Supervisory Program Manager position to work a 120-day detail to justify selecting her and that the selectee for the Special Assistant detail did not apply for the position. Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, national origin, color, age, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The OASA Plant Division Director (S1) stated, for claim (1), Human Resources (HR) provided a list of qualified applicants to be interviewed, including Complainant. S1 stated that he was on an interview panel of three members who reviewed candidate performance ratings, responses to interview questions and writing/editing exercises, and candidate resumes. S1 stated that the panel’s review related to each candidate’s (1) ability to perform at a high level, (2) communication skills, (3) leadership and management skills, (4) ability to work well with others, and (5) mastery of technical and trade policy issues. S1 stated that the selection process was very competitive. He noted that he had supervised the selected candidate (“selectee”) (Hispanic female, younger than Complainant) and Complainant, and that both have extensive relevant work experience, academic credentials, and training. S1 stated that the selectee’s application and interview “demonstrated overall greater leadership skills, communication skills, work performance, and ability to work effectively with others.” S1 stated that it was a unanimous decision between the interview panel members that the selectee was the best qualified candidate. A second interview panel member (S2), who is a Departmental Director, stated that Complainant was a top candidate for the position but was not better qualified than the selectee. S2 added that Complainant was only one point below the selectee in his individual rating score. For claim (2), the OASA Planning and Operations Group Chief (S3) stated that there was no selection process for the Specialist Assistant detail because she cancelled the vacancy announcement before HR issued the hiring certificate. S3 stated that there was no longer a vacant spot because she learned of an incoming Foreign Service Trainee (White female, younger than Complainant) to her unit and she and the Deputy Administrator decided to place the trainee in the detail position instead of hiring through announcement. We find that Complainant has not proven, by a preponderance of the evidence, that discriminatory or retaliatory factors motivated the Agency’s actions. With regard to claim 1, despite her assertions to the contrary, Complainant has not shown that the alleged disparities in qualifications between him and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Regarding claim (2), the Agency stated that it announced a Special Assistant detail, but prior to HR issuing a certificate for the detail, management learned that a Foreign Service Trainee was joining the unit. 2021000612 5 Consequently, it cancelled the detail announcement and placed the Foreign Service Trainee in the position. There is no evidence to support a finding that the decision to use the trainee for the detail was motivated by discriminatory or retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination or unlawful retaliation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021000612 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 September 8, 2022 Date