Alberto O., Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120140279 (E.E.O.C. Feb. 19, 2016)

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

Alberto O.,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120140279

Agency No. FS-2011-00299

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated September 19,
2013, 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. For the following reasons, we AFFIRM the Agency’s final decision finding of no
discrimination.

BACKGROUND

The record indicates that Complainant filed his complaint dated March 10, 2011, alleging
discrimination based on race (White) when: (1) on February 24, 2011, he learned that he was not
selected for the Law Enforcement Officer position, advertised under Vacancy Announcement
Number 10-60010008-00529-DP-NR; (2) on February 24, 2011, he learned that he was not
selected for the Law Enforcement Officer position, advertised under Vacancy Announcement
Number 10-60010008-00529-G-NR; and (3) on an unspecified date, he learned that his request
for a hardship transfer would not be granted. After completion of the investigation of the
complaint, Complainant requested a final Agency decision without a hearing. The Agency thus
issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons
for its actions, which Complainant failed to rebut.
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.

0120140279

2

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 had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. With regard to claims (1) and (2), during the relevant time
period at issue, Complainant was a Type One Commission Federal Law Enforcement Officer
(GL-0025-9) with the Agency’s National Park Service at Colonial National Park, Yorktown,
Virginia. Complainant claimed that he and his wife previously moved from Mississippi to
Williamsburg, Virginia, and he was trying to move back to Mississippi. Thus, he applied for the
position at issue specifically seeking the Law Enforcement Officer position, GL-9 level, with the
Agency’s Forest Service at Holly Springs in Oxford, Mississippi.

The record indicates that the “DP-NR” vacancy announcement in claim (1) was for nonfederal
employee applicants and the “G-NR” vacancy announcement in claim (2) was for federal
employee applicants applying under merit. Both vacancies were announced for GL-5, 7, and 9
grade levels to fill six positions located in Louisiana, Tennessee, Alabama, Oklahoma,
Mississippi, and Texas. Two of the vacancies were filled under “DP-NR” announcement at the
GL-5 and the GL-7 level; and four were filled under “G-NR” announcement, i.e., three at the
GL-5 level and one at the GL-7 level. And, of those four “G-NR” positions, one was filled at the
GL-5 level at Holly Springs in Oxford, Mississippi, for which Complainant applied at the GL-9
level.

A Selecting Official (SO) at Holly Springs in Oxford, Mississippi, indicated that there were 405
applicants, including Complainant, for the vacancy announcements in claims (1) and (2). The
SO stated that his Patrol Captain and Patrol Commander reviewed the applications, conducted
reference checks, and provided him with the certificates of the best qualified applicants initially
among only GL-9 applicants. The SO indicated that Complainant was not one of six applicants
referred to him on the GL-9 best qualified certificates. The SO stated that he later received the
certificate of three best applicants among GL-5 applicants and decided to hire a selectee at the
GL-5 entry grade level because he wanted to build up the Agency’s bench strength targeting an
entry level employee. The SO also indicated that the selectee was also currently working on the
Holly Springs Ranger District in Fire Management. The SO noted that he received no

0120140279

3
certificates for the GL-7 level. The SO indicated and he did not know Complainant or the
selectee at the time of the selection at issue.

With regard to claim (3), Complainant claimed that he initially started to work on obtaining a
hardship transfer to Holly Springs, Mississippi, on September 23, 2010, but when he talked to
the SO, who was the Approving Official, he perceived that the SO was not going to accept his
hardship request and he stopped pursuing the matter. The SO stated that he received many calls
and inquiries concerning hardship requests within his own workforce and from employees from
other agencies. The SO indicated that although he remembered that Complainant did call
inquiring about a hardship, he did not remember what the hardship was about and Complainant
did not make an official hardship request in writing. We note that Complainant did not claim
that the SO denied his hardship request. Furthermore, we note that Complainant indicated that
he was no longer seeking a hardship transfer because his wife recently obtained a position with
the local college.

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. We also find that Complainant failed
to show that he was treated less favorably than a similarly situated employee under similar
circumstances. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discrimination as he alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the

0120140279

4
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 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 19, 2016
Date