Bud D.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120171035 (E.E.O.C. Oct. 17, 2018)

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

Bud D.,1
Complainant,

v.

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

Appeal No. 0120171035

Agency No. FSA201600093

DECISION

On January 19, 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
December 15, 2016, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a County Office
Technician, CO-7 at the Agency’s Iowa State Farm Service Agency (FSA) facility in Waukon,
Iowa. On January 16, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him based on age (51) when on September 2, 2015, and other specified
dates, he was not selected for a County Office Trainee (COT) position.

Complainant contends that he was a victim of age discrimination because, despite that he had a
long tenure with FSA, is the head of compliance, administers the disaster program, and is the
Iowa State Midas Trainer for the Midas Program, the selection panel chose young and
inexperienced persons for the COT jobs.

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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Complainant added that other evidence of discrimination included a panel member asking him,
"Why did you wait so long to apply for the COT position to become a County Executive Director
(CED)?" and that none of his references were called.

After 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). In accordance with Complainant’s request,
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 him to discrimination as alleged.

Specifically, the Agency found that Complainant established a prima facie case of age
discrimination. However, the Agency found that the five panel members articulated legitimate,
nondiscriminatory reasons to justify Complainant’s nonselection, which Complainant failed to
show were pretextual.

According to the record, the interview panel members rated each candidate's response and then
voted for candidates that they wished to hire. A panel member explained that those candidates
with the highest number of votes were selected for the position. He added that the Agency's
overriding objective was to select COT candidates who had the potential to be exemplary office
managers because managing a staff consisting of three to eight staff members is one of the duties
of the CED. Another panel member asserted that he was not "comfortable" with many of
Complainant’s responses because he felt Complainant did not demonstrate that he could lead an
office. That panel member added that the selectees, in contrast, exhibited “empathy, good
listening skills, good customer service, and a willingness to be challenged in new ways." He
recalled that the successful candidates also highlighted their leadership skills or described
situations in which they showed leadership. A third panel member stated that she interviewed
Complainant twice and found him to be an “average” applicant who "did not rise to the top"
during his interview. The fourth panel member asserted that the selection panel chose the
selectees instead of Complainant because they perceived that the selectees would make the best
CEDs. The fifth panel member averred that the selectees did a better job of answering the
questions than Complainant.

Documentary evidence shows that four of the five selectees received a total of seven votes by the
panel members; the other selectee received six votes and Complainant received two votes. The
Agency found that although Complainant was qualified for the COT position and had worked for
the Agency for a lengthy period, these credentials did not make Complainant the most suitable
candidate or demonstrably superior than the selectees for the COT position. Accordingly, the
Agency resolved that Complainant was not subjected to discrimination based on his age when he
was not selected for the COT position.

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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”).

On appeal, Complainant argues that the Agency’s decision finding no discrimination should be
reversed because the Agency did not follow protocol as set forth in the Agency’s Handbook
when it failed to call his references. We have reviewed the record and find no reversible error.
The Agency explained that references are called only for the applicants that are selected for the
COT program. Complainant has not offered any evidence that establishes this reason is a pretext
or that his age was a factor in the nonselection. Therefore, the Commission finds no violation of
the ADEA.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
AFFIRMS the decision of the Agency finding no discrimination as alleged.

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. 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;
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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. § 1614.403(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