Sherill S.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120150043 (E.E.O.C. Feb. 23, 2017)

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

Sherill S.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120150043

Agency No. OCFO-2013-00218

DECISION

On September 26, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s September 10, 2014, final decision 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.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Assistant, GS-0503-07, with the Agency’s National Finance Center (NFC),
located in New Orleans, Louisiana. On March 1, 2013, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of sex (female), age (54), and
in reprisal for prior protected EEO activity when on December 4, 2012, she learned she was
not selected for the GS-0343-7/11, Program Analyst Position, advertised under Vacancy
Announcement Number NFC-12-198-GVM.2 This vacancy covered five Program Analyst

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.
2 Complainant also initially alleged that there was nepotism because an employee who served
as a panel member interviewed his sister, who was selected for one of the positions. The
Agency dismissed this claim as failing to state a claim. Complainant reasserts this nepotism
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positions; one in the Quality Control Staff, one in the Payroll Processing Branch, and three in
the NFC Contact Center.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently
withdrew her request. Consequently, 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 her to discrimination as alleged.

FACTUAL BACKGROUND

The record shows that Complainant applied for the Program Analyst positions at issue herein
on August 9, 2012, and she interviewed for the position on November 1, 2012.

According to vacancy announcement, the GS-07 Program Analyst level required one year of
specialized experience equivalent to the GS-05 level that included “analyzing proposed system
changes or enhancements to automated payroll/personnel processing systems.” The GS-09
level required one year of specialized experience equivalent to the GS-07 level that included
“evaluating the effectiveness of procedures and proposed changes to automated
payroll/personnel processing systems.” The GS-11 level required at least one year of
specialized experience equivalent to the GS-09 level that included “analyzing, testing,
evaluating, and improving automated payroll/personnel processing systems…and making
recommendations….”

Agency records indicate that 45 applicants qualified for the Certificate of Eligibles for the
Program Analyst, GS-07, position, 23 applicants qualified for the Program Analyst, GS-09,
position and two applicants qualified for the GS-11 position. The panel interviewed 35 of the
45 qualified GS-07 applicants, 19 of the 23 qualified GS-09 applicants and one of the two
qualified GS-11 applicants because the other qualified applicant declined to participate in the
interview.

According to Agency records, the interview panel reviewed and scored the candidates’
applications in the following competencies: Payroll Knowledge/Processing, Research and
Analysis Experience, Customer Service Experience, Communications, and
Teamwork/Attention to Detail. Records also indicate that the panelists questioned and rated
the candidates on their responses to five position-related interview questions.

The record shows that the interview panel took notes and rated the candidates’ interview
responses with a “5”, “3”, or “1.” Following the interviews, the panel members issued a
collective rating for the candidate’s interview responses and applications on the matrices. The

claim on appeal. We agree with the Agency’s dismissal and note that such an assertion
contradicts Complainant’s claims of discrimination or reprisal.
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interview and application matrices were combined into a final matrix. The top five scoring
candidates were selected for the five Program Analyst positions. The selecting officials did not
select Complainant because she provided general interview responses with little detail, and her
failure to provide detailed responses affected her final score, which was not among the top five
scores.

On December 4, 2012, Complainant learned that she was not selected for the position.
Complainant asserts that one selectee (S1) in particular had far less work and supervisory
experience than she did. Complainant maintains that her qualifications were superior to the
selectees because she had over 23 years of Federal service. She contends that she supervised
GS-06 and GS-07 employees and had the requisite experience on special projects.
Complainant also alleges that the interview panel manipulated the matrix scores in order to
“make it seem like less qualified individuals [were] more qualified.” However, she admits that
she does not know of a specific individual who received an artificially high score.

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”).

The Agency concluded that Complainant failed to establish a prima facie case of discrimination
or reprisal on any basis alleged. Specifically, the Agency concluded that any inference that
age was a determinative factor in the selection process for the Program Analyst position was
negated by the fact that three of the selectees were over the age of 50, and two of them were
only three years younger than Complainant. The Agency also concluded that Complainant’s
sex discrimination claim was contradicted by the fact that four of the five selectees were female
(i.e., members of the Complainant’s protected class). Lastly, the Agency noted that even
though Complainant could easily prove that she engaged in protected activity, she had not
established that the officials taking action were aware of her prior EEO activity.

We agree with the Agency’s findings and conclusions. We also find that Complainant has
failed to establish that the selecting officials’ reasons for not selecting her for one of the five
available positions (i.e., the rating she received by the interview panel members did not fall
within the top five for any of the positions) were a pretext for discrimination or were otherwise
motivated by discriminatory or retaliatory animus.

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CONCLUSION

Accordingly, 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 (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 (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.
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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

February 23, 2017
Date