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

Equal Employment Opportunity Commission

Oct 26, 2018

0120172996 (E.E.O.C. Oct. 26, 2018)

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

Hipolito P.,1
Complainant,

v.

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

Appeal No. 0120172996

Agency No. FSA-2017-00084

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 9, 2017
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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Special Government Employee (SGE) in an
intermittent position as Chairman of the Mississippi Farm Service Agency State Committee, GS-
15, at the Agency’s facility in Jackson, Mississippi.

On January 23, 2017, Complainant filed the instant formal complaint. Complainant alleged that
the Agency discriminated against him on the bases of race (African-American), color (Black),
and age (over 40) when:

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.
0120172996

2

on September 30, 2016, he was notified that he was not selected for the Loan
Specialist GS-1165-11/13 position, advertised under Vacancy Announcement
Number FSA-16-0576-DAFLP-MJ.

After the investigation of the claim, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on August
9, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant, on appeal, argued that he was better qualified for the
subject position than the selectees. Specifically, Complainant stated that a review of the records
indicated that “he previously held the same exact position which is the subject of this dispute
along with his educational achievements as well as his long standing excellent work history with
the USDA would demonstrate that he had superior qualifications and was better qualified for the
position.”

ANAYLSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted based on a prohibited reason. See St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
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, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
0120172996

3

Complainant stated that on May 14, 1990, he began working for the Agency. On August 17,
2007, Complainant voluntarily separated from the Agency. Complainant stated, however, he
returned to the Agency and has held his current Special Government Employee (SGE) position
since January 1, 2010. Complainant maintained that several of the selection panel members were
aware of his age. After submitting his application for the Loan Specialist position, Complainant
received a notification that he made the certificate of eligible.

The record reflects that there were four positions open and Agency management anticipated to
filling 1–4 positions. The first interview panel consisted of three Agency officials. The panel
conducted interviews by telephone. The panel asked each applicant a series of questions and
forwarded their interview assessments to the Division Directors. Only the top four applicants
were referred to the Division Directors. Complainant was not one of the top four applicants
since he was ranked at the bottom of the list of applicants.

The Guaranteed Loan Making Branch Chief (Caucasian, white, 58 years old) stated that he
coordinated the hiring process. Specifically, the Branch Chief stated that he submitted the
required forms to Human Resources (HR) and “received the resumes of applicants that qualified
for the vacancies. I also participated in the 1st interview. I did not make a selection, only a
recommendation.”

The Branch Chief stated after the panel reviewed the applicants’ application packages, they
interviewed 13 applicants. The Branch Chief explained that he was looking for an applicant
“that had current Farm Loan Program knowledge who had experience working with the
guaranteed loan system computer program. Also someone with good communication skills and
is easily adaptable to different situations.”

The Branch Chief noted that the interviews were conducted by phone except for one who
requested to be interviewed in person. The Branch Chief further stated that each applicant was
asked a series of the same 8 questions, and each response was ranked from “0, being no
response, to 5 being the best response. Each candidate was given a score based on the total sum
of the ranking of the responses.”

Further, the Branch Chief stated that based on the scores and work experience, the panel
recommended top applicants to the Division Directors.

The Branch Chief stated that Complainant was not one of the recommended applicants to the
second interview panel because he had not worked with the Farm Loan Program “since August
2007 and had not worked with the guaranteed program since March 2000. The other 12 all had
current experience and also were certified by HR as ‘best qualified.’” Moreover, the Branch
Chief stated that the applicants’ race, color and age were not factors in the panel’s decision to
recommend two applicants to the Division Directors.

0120172996

4
The Branch Chief Direct Loan Making (Caucasian, white, 44 years old) stated that he was part of
the first interview panel. The panelist explained that the panel asked the applicants the same
eight questions and scored them based on a score of 0 to 5. The panelist stated that the panel
interviewed approximately 13 applicants and Complainant “was down on the low end out of all
the people we interviewed. I don’t remember exactly what his score was. But he was in the
bottom 3 or 4.”

The Director, Loan Servicing /Property Management Division (Caucasian, white, 56 years old)
stated that he was part of the second interview panel with the approving official. The Director
stated that he and the approving official asked the applicants specific questions such as how they
would handle certain work situations, work experience and program knowledge. The Director
further stated that he and the approving official ranked the applicants using a score from 1 to 5
based on how they answered the questions.

The Loan Making Director (Caucasian, 5, white, 5 years old) stated that she was one of the two
Division Directors in regard to the second interviews and also was the approving official. The
approving official stated at that time one of the four top ranked applicants withdrew from
consideration, and the panel then focused on the three recommended applicants for the subject
positions.

The approving official stated that since Complainant was not referred for a second interview she
had “no basis to compare. All three selections were GS 1165 employees with the Agency. Since
the complainant left the Agency in 2007, Farm Loan Programs had implemented several new
loan programs, numerous regulatory and automation changes, and policy revisions. It would be
difficult for someone who has not worked in Farm Loans Programs for this extended time to
provide programmatic and regulatory guidance to field staff. The selectees had extensive
experience and knowledge in the current programs, regulations, and policies of Farm Loans.”

Beyond his assertions, Complainant produced inadequate evidence to establish that this
explanation was pretext designed to mask discriminatory animus. The evidence of record shows
that the selectees were qualified for the position in question based on their current Farm Loan
Programs knowledge, good communication skills, and experience working with the Guaranteed
Loan System computer program. However, Complainant has not shown that any alleged
disparities in qualifications between himself and the selectees are “of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have chosen
the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732
(11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such,
we find that Complainant failed to establish, by a preponderance of the evidence, that unlawful
discriminatory animus played any role in the selection decision.

Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination.

0120172996

5
Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of
record does not establish that discrimination occurred.

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.
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.
0120172996 6
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 26, 2018
Date