Erwin V., Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120143271 (E.E.O.C. Mar. 1, 2016)

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

Erwin V.,
Complainant,

v.

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

Appeal No. 0120143271

Agency No. FSA-2014-00053

DECISION

Complainant filed an appeal from the Agency’s September 9, 2014 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 worked as a GS-11 Farm Loan
Officer at the Agency’s State Office in Marianna, Arkansas. On February 3, 2014, he filed an
EEO complaint in which he alleged that the State Executive Director, in her capacity as a
Selecting Official (SO) discriminated against him on the bases of race (African-American), color
(Black), sex (male), and reprisal (prior EEO activity) by not promoting him into the position of
GS-12 Supervisory Agricultural Loan Officer (SALO) on October 23, 2013.

The SO averred that as soon as she received permission to fill the SALO vacancy, she had her
Administrative Officer convene a three-person panel to review the application packages and
interview the three applicants who were listed on the certification list as meeting the
qualifications for the SALO position. The panelists asked each candidate the same set of
1This 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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questions during the interview. Investigative Report (IR) 79, 163, 269. The panelists scored
Complainant and the Selectee as follows:

IR 171, 177-82, 198, 270-94. The SO averred that she made her selection after reviewing the
applications and interview scores, and that she chose the selectee because she had thirteen more
years of experience with the Agency as a Farm Loan Officer than Complainant. IR 66-67, 72,
243, 260, 262.

At the conclusion of the investigation, the Agency notified Complainant of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On
June 16, 2014, Complainant requested a final decision, and in accordance with Complainant’s
request, the Agency issued a 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.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving promotions
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would have
to prove, by a preponderance of the evidence, that the SO were motivated by unlawful
considerations of his race, color, gender, or previous EEO activity when she declined to award
him the SALO promotion on October 23, 2013. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000).

Complainant can do so in circumstantial-evidence cases like this by presenting documents or
sworn testimony showing that the reason articulated by the SO for not selecting him is
pretextual, i.e., not the real reason but rather a cover for discrimination. St. Mary’s Honor
Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext
in nonselection cases can take the form of a showing that Complainant’s qualifications for the
position were plainly superior to those of the selectee. Hung P. v. Department of Veterans
Affairs, EEOC Appeal No. 0120141721 (December 3, 2015). It can also take the form of
discriminatory statements or past personal treatment attributable to the SO, comparative or
statistical data showing differences in treatment across racial, color, or gender-related lines,
unequal application of Agency policy, deviations from standard procedures without explanation
or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

Complainant Selectee
Panelist 1 22 21
Panelist 2 14 17
Panelist 3 19 22
Total 55 60

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When asked by the investigator why he thought he was better qualified for the SALO position
than the Selectee, Complainant responded that although he had fewer years of Farm Loan
experience at the Agency, he had seven years of management experience prior to coming to the
Agency which the Selectee did not have, and which the SO did not take into account. He also
pointed out that he had been born and raised on a farm. IR 38, 40, 117. The Commission has
long held that an employer has discretion to choose among equally qualified candidates as long
as the selection is not based on unlawful criteria. Complainant v. Department of Homeland
Security, EEOC Appeal No. 0120141478 (July 31, 2015). The Commission has likewise held
that having more years of experience than a selectee does not necessarily make an individual
more qualified to meet the needs of the organization. Complainant v. Department of Justice,
EEOC Appeal No. 0120131151 (February 25, 2015). The candidates’ application packages and
the interview response sheets prepared by the panelists overwhelmingly demonstrate that while
Complainant and the Selectee had different sets of experience, both were highly qualified for the
position. We therefore find that the SO’s choice of the Selectee was well within the bounds of
her managerial discretion, and that Complainant has not presented any documents or testimony
beyond his own sworn statement which tend to show that his qualifications for the SALO
position were plainly superior to those of the selectee.

When asked by the investigator why he believed that the SO treated the Selectee more favorably
than him because of his race, color, sex, or prior EEO complaint, Complainant reiterated that the
SO had preselected the Selectee, that the Selectee had limited management experience and had
been previously demoted, that there were only three black male Farm Loan Officers in Arkansas,
and that two applicants for the position of District Director were not selected because they had
civil rights complaints pending against them. IR 40-41. However, when asked whether he had
any evidence that supports these assertions or whether any reference or remarks were made about
his race, color, sex, or previous EEO activity during any part of the selection process,
Complainant replied, “no.” IR 41. The laws the Commission enforces cannot prevent an
employer from making decisions with which its employees disagree unless those decisions are
rooted in a statutorily proscribed. motivation. Joni M. v. Department of Homeland Security –
Transportation Security Administration, EEOC Appeal No. 0120142884 (February 1, 2016).
And again, on this crucial issue, Complainant did not provide evidence of any of the indicators of
pretext described above apart from his own affidavit. He has not submitted any sworn
statements from other witnesses or documents that contradict the explanation provided by the
SO, or which call the SO’s veracity into question. We therefore agree with the Agency that
Complainant failed to establish the existence of an unlawful motive on the part of the SO with
respect to his not being promoted on October 23, 2013.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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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
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.

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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

March 1, 2016
Date