Eleni M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120171716 (E.E.O.C. Oct. 31, 2018)

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

Eleni M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120171716

Agency No. NIFA-2016-00772

DECISION

On April 12, 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
March 10, 2017, 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. 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 was an applicant for employment.

On July 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when on May 23, 2016, she learned that she was not
selected for the GS-0401 13/15, Biological Science Specialist (National Program Leader (Public
Health Nutrition)) position, advertised under vacancy announcement numbers NIFA-SI6N-0008
and NIFA-M16N-0009.

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.
0120171716

2
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 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 her to
discrimination as alleged. The Agency explained that Complainant did not make the list of
qualified individuals because she failed to timely submit all of her supporting documentation. The
Agency also noted that Complainant’s application materials did not demonstrate the requisite
qualifications for a GS-15 level position, such as evidence of involvement in interagency
workgroups or task forces in the context of public health, expertise with addressing problems in
public health nutrition, as well as a track record of high-level presentations to academia and high-
level policy officials. In finding no discrimination, the Agency found that Complainant failed to
prove by a preponderance of the evidence that management’s legitimate, nondiscriminatory
reasons were pretext for discrimination based on sex.

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 contends that Agency officials were negligent in relying on a GS-14
subject matter expert (SME) to evaluate Complainant’s qualifications for a GS-15 position. She
contends that the Agency failed to adhere to the principles and privileges awarded to veterans and
their spouse by the Veterans Employment Opportunity Act of 1998. She also alleges that the
Agency illegally selected and promoted another applicant who had inferior qualifications.

In response, the Agency argues that Complainant failed to provide any evidence of pretext to rebut
its legitimate, nondiscriminatory basis for her nonselection. The Agency asserts that while
Complainant may honestly believe she was more qualified than the selectee, her subjective
personal self-assessment does not constitute evidence to support a viable claim of discrimination.
Finally, the Agency contends that Executive Order 13473 permits agencies to appoint a military
spouse without competition, but does not entitle spouses to an appointment, and insofar as an
independent subject matter expert and senior HR specialist both concluded that Complainant was
unqualified for the position, her veteran preference eligibility was irrelevant to her candidacy.

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
0120171716

3
First, Complainant must establish a prima facie case by demonstrating that she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on 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). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993). Where the Agency has articulated a legitimate,
nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly
to the third step of the McDonnell Douglas analysis. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-14 (1983).

We shall assume arguendo that Complainant established a prima facie case of discrimination based
on sex with regard to her nonselection. In the final decision, the Agency explained that
Complainant was not selected for the position because she failed to make the list of qualified
individuals due to her untimely submission of application materials. The Agency stressed that it
nevertheless afforded Complainant a thorough and objective review of her application after
Complainant contacted the Service Center Director to inquire about her candidacy. The Agency
noted that a senior HR specialist and subject matter expert both reviewed Complainant’s
application (including all materials submitted by Complainant) and found her unqualified for the
position.

Although Complainant believes that her nonselection was due to her sex, we are disinclined to find
merit in such argument. In nonselection cases, Complainant can demonstrate pretext by showing
that her qualifications for the position were plainly superior to those of the selectee. Hung P. v.
Dep’t of Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015). The preponderance of
the evidence, however, does not show that Complainant’s qualifications were plainly superior to
the selectee. The record reflects that the selectee recently served as a GS-15 Supervisory
Nutritionist/Research Leader at the Beltsville Human Nutrition Research Center Nutrient Data
Laboratory. Complainant, on the other hand, served as a GS-15 Public Health Analyst in 1987 for
the Government of the District of Columbia. Based on the totality of the record, we find that
Complainant has failed to fulfill his burden of showing that the Agency’s articulated reasons were
pretext for discrimination.

We are unpersuaded by Complainant’s contention that Agency officials erred in relying on a GS-
14 subject matter expert (SME) to evaluate her qualifications for a GS-15 position. In this regard,
Complainant has not cited to any legal authority or Agency policy that would preclude a lower
graded employee from evaluating the qualifications of an applicant for a higher graded position.
Moreover, even if we were to assume that the Agency made a mistake during the selection process,
Complainant has not presented any evidence to link the mistake to her protected status.
The Agency argues that Complainant’s eligibility for preferential hiring in accordance with the
Veterans Employment Opportunity Act of 1998, had no bearing on her candidacy because she was
unqualified for the position.
0120171716

4
Even if the Agency is incorrect in its interpretation of the Veterans Employment Opportunity Act,
this by itself is not sufficient to establish pretext. We find that Complainant has failed to rebut the
Agency’s legitimate, nondiscriminatory explanation for her nonselection or show that the
Agency’s selection decision was motivated by discrimination.

CONCLUSION

We AFFIRM the Agency’s 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. 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. §
1614.403(g). The request or opposition must also include proof of service on the other party.
0120171716 5
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
October 31, 2018
Date