Lonnie H.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160272 (E.E.O.C. Jan. 11, 2018)

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

Lonnie H.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Appeal No. 0120160272

Agency No. OCFO-CF-2014-00516

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the September 28, 2015 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Specialist, GS-7, at the Agency’s National Finance Center, Contact Center in New
Orleans, Louisiana. In October 2012, the Agency issued Vacancy Announcement No. NFC-13-
005-ALB for an EEO Specialist at the GS-11 level. Complainant did not apply for this position
because he was not eligible as a GS-7 employee. The Selecting Official (SO) decided to non-
competitively appoint a disabled veteran (Selectee-1) who held an EEO Assistant position in the
office under the Veteran’s Readjustment Appointment (VRA) process and cancelled the vacancy
announcement. Selectee-1 ultimately resigned from the position in June 2013.

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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On August 22, 2013, the Agency issued Vacancy Announcement No. NFC-13-244-ALB for
another vacant EEO Specialist position. The position was announced at the GS-5/7 level with
promotion potential to the GS-11 level. The vacancy announcement noted the Selecting Official
had identified knowledge of American Sign Language (ASL) and the ability to interpret/translate
English to sign language as requirements of the position. Complainant applied for the position,
but was rated as not qualified the position. Complainant claimed that the ASL requirement had
never been in previous vacancy announcements for similar EEO Specialist positions and caused
him not to qualify for the position. SO ultimately selected Selectee-2 at the GS-7 level.

On June 5, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), color (dark complexion), age
(42), and in reprisal for prior protected EEO activity when:

1. On April 24, 2014, Complainant learned that the advertised GS-11 grade level for
the EEO Specialist position advertised under Vacancy Announcement No. NFC-
13-005-ALB had been changed from when the position had been advertised
previously at the GS- 7/9/11 grade level which made him ineligible to apply;

2. On April 24, 2014, Complainant learned that the EEO specialist, GS-11 position
advertised under Vacancy Announcement No. NFC-13-005-ALB had been given
to an applicant at the GS-7 level without re-advertising the position, thereby
preventing him from applying for the position; and

3. On February 3, 2014, Complainant learned that a selection had been made for the
GS-7/9 EEO Specialist position that he was deemed to be disqualified for under
Vacancy Announcement No. NFC-13-244-ALB due to the qualifications for this
position being changed from the previous requirement.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not respond within the timeframe provided
in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), SO confirmed that there
was a need for a full-performance EEO Specialist who did not need to be trained; therefore, the
position was advertised at the GS-11 level. Regarding claim (2), SO affirmed that she selected
Selectee-1 through the non-competitive VRA process because Selectee-1 had prior EEO
experience in the military, was competent, had good people skills, and was familiar with the
relevant databases necessary to perform the duties of the position. Additionally, SO stated the

2 For ease of reference, the Commission has re-ordered the claims in chronological order of the
vacancy announcements at issue.
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Agency was attempting to meet its objectives through the VRA. Finally, with respect to claim
(3), SO stated that she made the decision to require applicants to possess ASL skills because
there were 16 – 18 employees that needed sign language services. The record revealed that ASL
skills were required in five of the last seven EEO Specialist recruitments.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant was not subjected to
discrimination or reprisal as alleged. Complainant filed the instant appeal without submitting
any arguments or contentions in support.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Once Complainant has
established a prima facie case, the burden of production then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to
demonstrate by a preponderance of the evidence that the Agency’s reasons for its actions are
pretext for discrimination. Id. At all times, Complainant retains the burden of persuasion, and it
is her obligation to show by a preponderance of the evidence that the Agency acted on the basis
of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination and reprisal, the Commission finds that Complainant failed to present evidence to
rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically, with
regard to claims (1) and (2), SO affirmed that she decided to announce the EEO Specialist
position at the full performance level of the position, the GS-11 level, to avoid training someone
in the position. ROI, at 149. SO stated that Selectee-1 had demonstrated her ability to perform
the duties of the position as an EEO Assistant. Id. at 150. SO noted that Selectee-1 had good
people and organizational skills, familiarity with Agency databases, and similar relevant
experience from the military. Id. SO noted that the Agency was making a concerted effort at the
time to provide more opportunities for disabled veterans. Id. Thus, SO affirmed that she worked
with Human Resources to cancel the vacancy announcement and non-competitively appoint
Selectee-2 under VRA. Id. SO stated that she initially thought that Selectee-2 could qualify as a
GS-11; however, she was advised that she could only qualify at the GS-7 level. Id.

Finally, as to claim (3), SO explained that the EEO Specialist position had been announced
numerous times in the past as having a sign language interpretation skill requirement. ROI, at
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148. SO stated that the office had a large number of employees who needed the service and the
only interpreter they had was overworked. Id. SO affirmed that the office initially had contract
interpreters; however, their availability had significantly decreased. Id. Following the quick
departures of two EEO Specialists and two individuals declining the position, SO decided to
announce the EEO Specialist position as a career-ladder position requiring sign language
interpreter skills. Id. SO stressed that this decision was made to address how best to provide
services to the 16 to 18 employees who needed the interpreting services. Id.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One
way Complainant can establish pretext is by showing that his qualifications are observably
superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is
simply one method and is not the only way Complainant may establish pretext as to his non-
selection claim.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. The Commission
finds no persuasive evidence that Complainant’s protected classes were a factor in any of the
Agency’s actions. The Commission finds that Complainant failed to show that his qualifications
for the position at issue were plainly superior to those of the selectees. In this case, the selectees
had attributes that justified their selections, and the selecting official affirmed that she believed
the selectees were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reasons were not the real reasons and that discriminatory or
retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a
result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.
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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.

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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

January 11, 2018
Date