Adrian W.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Dec 16, 2016

0120142776 (E.E.O.C. Dec. 16, 2016)

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

Adrian W.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120142776

Agency No. APHIS-2013-00750

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated June 25, 2014,
finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND

In his complaint filed on September 6, 2013, Complainant alleged discrimination based on sex
(male) and age (over 40) when:

(1) On May 21, 2013, he learned that he was not selected for the GS-0403/0701-15,
Interdisciplinary: Supervisory Veterinary Medical Officer/Microbiologist (SVMO)
position, advertised under Vacancy Announcement No. 24VS-2013-0063/Merit
Promotion Vacancy Announcement 6VS2013-0071; and

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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(2) On several dates, and continuing, he was subjected to various acts of harassment
including but not limited to:

(a) On unspecified dates, his supervisor treated older male employees disrespectfully,
but was more nurturing toward younger male staff members
(b) On an unspecified date, his supervisor asked, “What do those good old boys think-
they don’t have to follow the rules?”;
(c) On an unspecified date, he was accused of being manipulative;
(d) On an unspecified date, he was chastised for sending a draft electronic mail message
to a stakeholder; and
(e) On an unspecified date, his supervisor rejected his plan for an organizational
restructure.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency issued its final decision concluding that it asserted
legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time period, Complainant was employed as a
Veterinary Medical Officer/Head, GS-0701-14 at the Agency’s Veterinary Services, National
Veterinary Services Laboratory located in Ames, Iowa. Complainant claimed that on March
19, 2013, he applied for the SVMO position at issue and was certified as best qualified for the
position but was not selected.

With regard to claim (1), Complainant’s second level supervisor (S2) who was also the
selecting official for the SVMO position at issue indicated that she convened three managerial
panelists who ranked the candidates based on their interviews. S2 stated that Complainant was
not selected for the position because he was not the top ranked candidate. He scored 88.5 on
the interview and the selectee scored 127.5, the highest score. S2 indicated that the panel
noted that Complainant had more extensive laboratory experience than the selectee and
Complainant also had supervisory experience whereas the selectee had no supervisory
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experience. However, the panel also noted that Complainant did not have a good grasp of the
importance of the NAHLN (National Animal Health Laboratory Network) concept paper and
did not present a good vision of where NAHLN needed to go or the issues facing it. The panel
also noted that Complainant was not clear in defining his role when responding to certain
questions. The panel stated that the selectee provided an excellent vision of the NAHLN for
the future and her responses indicated an understanding of the importance of partnerships, a
clear understanding of her involvement in the experience relayed, and her approach to problem
solving. Upon review, we find that Complainant failed to show that his 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).

With regard to claim (2), S2 denied treating older male employees disrespectfully or making
the remark about Complainant’s age or accusing him of being manipulative. S2 stated that
during the relevant time period at issue, she was merely trying to clarify her expectations
concerning Complainant’s tasks and she merely questioned him about his sending an email
regarding Immunohistochemistry Proficiency Test results for a stakeholder. S2 also indicated
that in March, 2010, her Pathobiology Laboratory Director made plans to reorganize the
laboratory structure and as a result, she had a facilitator meet with all of the affected
supervisors and employees, including Complainant. But, due to the reduced budget and
decreasing program emphasis, management decided not to implement the plans. S2 indicated
that there was no discriminatory intent on her actions described in claim (2). After a review of
the record, we find that Complainant failed to establish the severity of the conduct in question
or that it was related to any protected basis of discrimination.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Based on the foregoing, we find
that Complainant has failed to show that the Agency’s actions were motivated by
discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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:

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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.
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
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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

December 16, 2016
Date