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

Equal Employment Opportunity Commission

Apr 10, 2018

0120162849 (E.E.O.C. Apr. 10, 2018)

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

Mario D.,1
Complainant,

v.

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

Appeal No. 0120162849

Agency No. FSA2015007742

DECISION

On September 12, 2016, 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 August 1, 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 as
alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a non-federal applicant
seeking employment as a Loan Assistant (Agricultural) and Loan Specialist (Agricultural) at
the Agency’s Farm Service Agency (FSA) facilities in Lincoln, Nebraska, Jerome, Idaho,
Caldwell, Idaho, and Okanogan, Washington. All the vacant positions were posted for
application in April 2015. Complainant was not selected for any of the positions.

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.

2 Complainant filed four complaints regarding his nonselections: FSA-2015-00774P, FSA-
2015-00765, FSA-2015-00764, and FSA-2015-00811. They were all consolidated under No.
FSA201500774.
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In August 2015, Complainant filed four EEO complaints, which were consolidated, alleging
that the Agency discriminated against him based on age (69) when:

FSA-2015-00774P

1. on June 29, 2015, he learned that he was not selected for the GS-1165-05/07,
Loan Assistant (Agricultural) position, advertised under Vacancy
Announcement Number FSA-15-0835-NE-PBP;

2. on June 29, 2015, he learned he was not selected for the GS-1165-09, Loan
Specialist Agricultural) position, advertised under Vacancy Announcement
Number FS ·15-0836-NE-PBP;

FSA-2015-00765

3. on June 22, 2015, he learned that he was not selected for the GS-1165-05/07,
Loan Assistant (Agricultural) position, advertised under Vacancy
Announcement Number FSA-15-0859-ID-PBP;

4. on June 22, 2015, he learned that he was not selected for the GS-1165-09 Loan
Specialist (Agricultural) position, advertised under Vacancy Announcement
Number FS-15-0861-ID-PBP;

FSA-2015-00764

5. on June 22, 2015, he learned that he was not selected for the GS-1165-05/07
Loan Assistant (Agricultural) position advertised under Vacancy
Announcement Number FSA-15-0867-ID-PBP;

6. on June 22, 2015, he that he was not selected for the GS-1165-09, Loan
Specialist (Agricultural) position, advertised under Vacancy Announcement
Number FS -15-0869-ID-PBP; and

FSA-2015-00811

7. on July 1, 2015, he learned that he was not selected for the GS-1165-09. Loan
Specialist (Agricultural) position, advertised under Vacancy Announcement
Number FS -15-086197-WA-PBP.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
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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 because of his age.

Specifically, with respect to Claims 1 and 2, the Agency found that Complainant established a
prima facie case of age discrimination. The Agency found that Complainant was over 40
years old, qualified for the positions he sought, and the selectees were significantly younger
than him. The Agency found that it had articulated a legitimate, nondiscriminatory reason for
not hiring Complainant. The Agency asserted that four candidates were selected because their
knowledge, skills, and abilities in agriculture, business, and financial operations, and lending
experience were reflected in their answers to the interview questions. Additionally, the
Agency asserted that two of the selectees were familiar with the Farm Loan Program because
they worked for the Agency. The Agency further asserted that the other two selectees’ had
backgrounds in lending with experience in farm credit, practical and livestock banking, as
well as college degrees in agriculture.

As for Claims 3 - 6, the Agency found that Complainant had not established a prima facie
case because he did not make the Best Qualified List for those particular positions. Hence, he
was not qualified for the positions he sought and thus was not interviewed.

With respect to Claim 7, the Agency found that Complainant established a prima facie case of
age discrimination but he did not rebut the Agency’s reasons for not hiring him. The Agency
stated that the selectee was a "good fit" for the GS-9 Loan Specialist position because: she had
administrative experience preparing documents; knowledge of the Agency policies and
regulations for borrower's accounts; could review and analyze financial statements; and had
experience in using the credit application software that the Agency uses. In contrast, the
selecting official stated that Complainant was not referred to her for selection and that she
accepted the recommendation of the interview panel. The record shows that following the
interviews: the selectee received the highest rating, which was 52; the second highest score
was 49; the third highest score was 42; and Complainant scored 37. Additionally, the
interviewers noted that Complainant failed to explain how his legal background qualified him
to perform the duties of the position. Based on this evidence, the Agency found that the
Agency's hiring decisions were not motivated by discrimination based on Complainant’s age.

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”).
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On review of the entire record, the Commission finds no evidence supporting Complainant’s
claims that he was not selected for the positions in question because of age. To the contrary,
the record supports the legitimate, nondiscriminatory reasons of the Agency – namely that
Complainant did not relate how his legal experience would qualify for him the Loan Assistant
and Loan Specialist positions, that he lacked lending and banking experience, and that, with
respect to certain positions, he was not on the certified list from which the selectees were
drawn or even when he was on the qualified list, he was not recommended for hire by the
panel. Accordingly, the Commission finds that Complainant has failed to produce any
evidence of age bias beyond his own unsubstantiated assertion, which is insufficient to
establish a violation of the ADEA.

Although Complainant had extensive experience as a lawyer and a judge, he failed to relate
his legal experience to the positions for which he applied. Additionally, he did not
demonstrate (unlike the selectees) significant experience in agricultural lending, loan
preparation, or loan analysis skills. Further, while Complainant alleged that he "worked with
farmers on loans and foreclosures," the evidence did not show that the Complainant actually
prepared, processed, or analyzed agricultural loans. Indeed, his job application did not show
that he held a single position in lending or banking. Complainant has failed to show that his
qualifications for the positions were plainly superior to the selectees’ qualifications.

CONCLUSION

The Commission AFFIRMS the Agency’s finding of 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.
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§ 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.
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

April 10, 2018
Date