a Ken M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120172501 (E.E.O.C. Oct. 17, 2018)

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

a
Ken M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120172501

Hearing No. 550-2015-00273X

Agency No. FS-2011-00885

DECISION

On July 14, 2017, 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
June 14, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
and former Forestry Technician, GS-0462-07 at the Agency’s Los Padres National Forest in Ojai,
California. Complainant applied for three positions with the Agency during their biannual “Fire
Hires.” Complainant asserted that he submitted all required documentation, including his last SF-
50 and the Incident Qualification Command System (IQCS) report which listed his fire
qualifications and training. Complainant alleged that he was qualified for the positions, but was
ultimately not selected over lesser-qualified applicants.

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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On September 13, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Hispanic) and in reprisal for prior
protected EEO activity when:

1. He was not selected and/or considered for the position of GS-0462-05/06/07, Forestry
Technician (Fire Prevention Technician), advertised under Vacancy Announcement
Number OCRP-PREV-462-5/6/7DP;

2. He was not selected and/or considered for the position of GS-0462-06, Lead Forestry
Technician (Fire Engine Operator), advertised under Vacancy Announcement Number
OCRP-AFEO-462-6DP; and

3. He was not selected and/or considered for the position of GS-0462-06/07, Forestry
Technician, advertised under Vacancy Announcement Number OCRP-AIRTANK-462-
6/7.

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). Complainant requested a hearing, but the
AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ’s
orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.

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”).

Disparate Treatment

2 Complainant did not challenge the AJ’s denial of his hearing request on appeal; therefore, the
Commission will exercise its discretion to review only those issues specifically raised on appeal.

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To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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 pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s
non-selection in each of the three positions. With respect to claim (1), the Human Resources
Assistant (HRA) reported that the El Dorado National Forest and Plumas National Forest did not
make selections. The remaining National Forests, Tahoe and Sequoia, made a GS-6 Merit
selection and a GS-5 career-conditional conversion, respectively. The Agency did not dispute that
Complainant was qualified for this position, but noted that Complainant applied at the GS-7 level
and all selections were made below that level. In addition, the selectees were chosen from the
Merit Certification list, which was not the same certification list on which Complainant was listed.
The selecting official stated that selections were based on the applicants’ training, skills,
experience, and reference checks.

As to the position at issue in claim (2), the Vacancy Announcement indicated that “[i]n order to
be considered for this position, copies of your IQCS Master Record (or equivalent training
document) which contain documented proof of the certification or attainment of the IFPM
Selective Placement Factor for this position MUST be attached to your application. Failure to
provide this documentation will result in disqualification.” The HRA reported that Complainant
did not attach the requisite IQCS Master Record with his application materials, which resulted in
his disqualification for the position. Other applicants who did not submit the required IQCS also
were disqualified.

Complainant contends that he submitted the requisite IQCS Master Record. However, a review of
Complainant’s application materials does not corroborate his assertion. In failing to submit the
required documentation, Complainant did not establish that he was more qualified than the
ultimate selectee. Complainant has failed to show that the Agency’s explanation is a pretext
designed to conceal discriminatory or retaliatory animus.

Finally, regarding the position in claim (3), the HRA reported that in reviewing the records, she
was unable to locate Complainant on the referral list. A review of the relevant application
materials indicates this position required one year of specialized experience. However,
Complainant’s application materials reflect that he reported six months of specialized experience
for this position. Moreover, a computer review of Complainant’s application materials revealed
that Complainant did not meet the basic qualifications for the position.
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Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One way
Complainant can establish pretext is by showing that his qualifications are observably superior to
those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).

The Commission finds no persuasive evidence that Complainant’s protected classes were a factor
in any of the Agency's actions. The Commission finds that Complainant failed to show that his
qualifications for the positions at issue were plainly superior to those of the selectees. In the
absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450
U.S. at 259.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory or
retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a result,
the Commission finds that Complainant has not established that he was subjected to discrimination
or reprisal as alleged.

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 finding no discrimination.

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.
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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. § 614.403(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.

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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

October 17, 2018
Date