Mary S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

May 18, 2018

0120162145 (E.E.O.C. May. 18, 2018)

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

Mary S.,1
Complainant,

v.

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

Appeal No. 0120162145

Hearing No. 460-2013-00015X

Agency No. GIPSA-2012-00471

DECISION

On June 15, 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
September 1, 2016, 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.2

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 a premature appeal. However, the Agency subsequently issued its final
decision. Where a premature appeal has been filed and the Agency subsequently issues a final
action while the appeal remains pending, we have held that the issuance of the decision cured
the defect and made the appeal ripe for adjudication. See Franchesca V. v. Dep't of the Treasury,
EEOC Appeal No. 0120150620 (March 24, 2017); Complainant v. Dep't of Veterans Aff., EEOC
Appeal No. 0120120712 (June 18, 2014).

0120162145

2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Agricultural
Commodity Grader, GS-1980-09/06, in the League City Field Office, Field Management Division,
Federal Grain Inspection Service (GIPSA) located in League City, Texas. On May 4, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Black), sex (female), and reprisal (prior protected EEO activity) when, on March 9,
2012, she learned that she was not selected for the GS-1980-11, Supervisory Agricultural
Commodity Grader (SACG) position, advertised under Vacancy Announcement Number 6GR-
2012-0002.3

The Agency dismissed the following claims: (a) on January 22, 2010, Complainant was not
selected for two GS-11, Supervisory Agricultural Grader positions, advertised under Vacancy
Announcement Numbers 6GR-2010-0007 and 6GR-2010-0006; (b) on January 18, 2012,
Complainant was improperly placed on indefinite Administrative Leave; (c) on an unspecified date
and in an unspecified manner, Complainant was discriminated against regarding an unspecified
Office of Workers’ Compensation Programs (OWCP) claim; (d) on an unspecified date and in an
unspecified manner, Complainant’s rights under “the HIPPO law” (sic) were violated; (e) on an
unspecified date and in an unspecified manner Complainant was discriminated against with respect
to travel vouchers; (f) on unspecified dates and in an unspecified manner, Complainant was
discriminated against with respect to annual leave, sick leave and leave without pay; and (g) on
unspecified dates and in an unspecified manner, Complainant was subjected to slander,
defamation, and character assassination.

The Agency concluded that Claims a and b were properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(l), because they state claims identical to those raised in Complainant’s prior EEO
complaints, GIPSA-2010-00357 and GIPSA-2010-00978. The Agency also concluded that
Claims d through g4 were not raised with the EEO Counselor assigned to counsel the subject
complaint during the informal process and are not like or related to the non-selection issue for
which Complainant was counseled. See 29 C.F.R. § 1614.107(a)(2). We find the dismissal of
these claims appropriate and note that Complainant does not raise this issue on appeal.

After 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 EEOC Administrative Judge

3 The record shows that Complainant filed a previous EEO complaint in 2010 (GIPSA-2010-
00357) in which she also alleged discrimination based on sex, race, and reprisal related to an
earlier non-selection. She filed a second EEO complaint (GIPSA-2010-00978) based on sex and
race pertaining to issues involving a workers’ compensation claim she filed in 2009, violations
of the “HIPPO” law, accusations she provided fraudulent medical documentation, and false
allegations made to her medical providers.
4 This includes Claim c, to the extent it is a different from the OWCP issues raised in GIPSA-
2010-00978.
0120162145

3
(AJ). Complainant requested a hearing. The AJ dismissed the hearing request based on
Complainant’s failure to prosecute her complaint. The AJ remanded the complaint to the Agency,
and 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.

On appeal, Complainant attempts to justify her failure to prosecute her case by the fact that she
did not own a computer.

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”).

Initially, we find that the AJ dismissed Complainant’s hearing because of Complainant’s failure
to comply with numerous orders after giving Complainant multiple notices of the potential for
dismissal for failure to comply and prosecute her case. We find the record devoid of evidence to
establish that the AJ abused his discretion in dismissing the hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. The burden 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). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the evidence, we agree with the Agency’s findings that Complainant failed to
establish that the responsible management officials’ legitimate non-discriminatory/retaliatory
explanations for the decision not to select Complainant for the SACG position were a pretext or
otherwise motivated by discriminatory or retaliatory motives. Assuming Complainant establishes
a prima facie case of discrimination and reprisal, the record shows that numerous responsible
management officials testified with respect to the selection process and decision.

0120162145

4
The record shows that an interview panel was established to interview, rate, and rank the
candidates and forward a recommendation to the selecting official (SO) (Black, male).
Complainant’s second-line supervisor (S2) (Black, male) testifies that he approved SO’s decision
to choose the selectee (SE) (Black, male, prior EEO activity), who was the highest ranked
candidate as recommended by the interview panel. S2 further testifies that the interview panel
agreed that SE was the top ranked candidate and SE’s score was superior to the four other
candidates who were interviewed.

The record shows that each interview panel member concluded that SE performed better on the
interview than Complainant and the other candidates. The Interview Rating Results sheet for the
five candidates indicates that the interview panel gave SE a score of 19 points (ranked first) and
Complainant a score of 11 points (ranked third). According to each panel member’s testimony,
Complainant earned a lower score due to a weaker performance in the interview.

Complainant concedes that she was not better qualified than SE but asserts that he was selected
only because another employee (C1) who S2 preselected was not available at the time of selection.
Complainant asserts that C1 was given the interview questions in advance and coached by SO and
S2 to perform well on the interview. Contrary to Complainant’s uncorroborated assertion, the
overwhelming evidence in the record shows that C1 did not apply for the SACG position and did
not participate in any interview. In addition, contrary to Complainant’s unsupported assertions
that she only learned of her interview time 20 minutes before it was scheduled, the documentary
evidence supports the conclusion that Complainant was given notice at least one day prior to the
interview by email and that each candidate was treated in a similar fashion.

We also agree with the Agency and find that the record is devoid of evidence to establish the
existence of discriminatory animus on the part of any responsible management official with respect
to the selection decision.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFRIM the Agency’s finding that Complainant failed
to prove her claim of unlawful discrimination or reprisal.

0120162145

5
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. 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.
0120162145

6
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

May 18, 2018
Date