Mickie B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

2019000356 (E.E.O.C. Aug. 13, 2019)

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

Mickie B.,1
Complainant,

v.

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

Appeal No. 2019000356

Hearing No. 551-2016-00161X

Agency Nos. FS-2016-00090 and FS-2016-00553

DECISION

On August 24, 2018, 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
July 24, 2018, final order concerning an 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.

During the period at issue, Complainant worked as a GS-12 Architect at the Engineering
Department for the Agency’s Northern Region in Missoula, Montana.

On December 10, 2015, Complainant filed a formal EEO complaint (Agency No. FS-2016-00090).
On June 9, 2016, Complainant filed a second EEO complaint (Agency No. FS-2016-00553). In
sum, the two complaints alleged that the Agency’s actions subjected her to unlawful discrimination
on bases of sex (female), age (59), and in reprisal for prior protected EEO activity regarding three
employment decisions:

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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1. when the Agency failed to select failed Complainant for a temporary detail as a program
manager on October 5, 2015 (Agency No. FS-2016-00090);

2. when the Agency issued Complainant a “superior” rating instead of an "outstanding” rating
on October 23, 2015 (Agency No. FS-2016-00090); and

3. when the Agency failed to select Complainant for a GS-14 deputy director position on
March 18, 2016 (Agency No. FS-2016-00553).

The Agency investigation Agency No. FS-2016-00090 concluded on May 20, 2016. The Agency
investigation Agency No. FS-2016-00553 concluded October 3, 2016. After both investigations,
the Agency provided Complainant with a copy of its report of investigation and a notice of the
right to request a hearing before an EEOC Administrative Judge (AJ). For Agency No. FS-2016-
00090, Complainant timely requested a hearing on June 20, 2016. For Agency No. FS-2016-
00553, Complainant timely requested a hearing on October 17, 2016. On December 20, 2016, the
assigned AJ consolidated both cases.

On July 7, 2017, the Agency moved for a decision without a hearing. On July 18, 2017,
Complainant responded opposing the Agency motion. On July 20, 2018, the AJ issued his decision
by summary judgment in favor of the Agency. The Agency subsequently issued a final order
adopting the AJ’s finding of no discrimination.

The instant appeal followed. On appeal, Complainant contends the Agency improperly denied her
alternative dispute resolution. Furthermore, Complainant contests the AJ’s grant of the Agency’s
motion for decision without a hearing.

ANALYSIS AND FINDINGS

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015) (providing that an AJ’s determination to issue a decision
without a hearing, and the decision itself, will both be reviewed de novo). This essentially means
that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis – including
on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of
whether any federal employment discrimination statute was violated. See id. at Ch.9, § VI.A.
(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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The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to
determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at
249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and
must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of
fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A
“material” fact has the potential to affect the outcome of a case.

Here, Complainant has failed to specifically point to particular evidence in the investigative file or
to other material evidence that indicated such a dispute necessary for us to disturb the AJ’s issuance
of a decision without a hearing. For the reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could
not find in her favor.

In disparate treatment discrimination claims, a complainant must satisfy the U.S. Supreme Court’s
three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Initially, a complainant must 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 (1973). The next burden shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1931). To ultimately prevail, a complainant must
prove, by a preponderance of the evidence, that the agency's explanation was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). However, the first step of determining the
existence of a prima facie case, need not be followed in all cases. If the agency articulates a
legitimate, nondiscriminatory reason for its employment action, then our 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-
714 (1983).

Claim 1 — October 5, 2015 Nonselection for Detail

Complainant accused the Agency of making decision to selecting a far younger female engineer
for the Environmental and Facilities Program Manager detail out of animus toward her age or
retaliatory motivation. To carry this burden of persuasion, Complainant needed to prove the
Agency’s proffered explanations were unworthy of credence. See Burdine at 256. Here,
Complainant had to establish the Agency’s stated reasons its decision were pretexts masking age
discrimination or retaliation. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
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(Dec. 6, 1996). The most effective way for Complainant to prevail was by proving “plainly
superior” qualifications over those of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). We find Complainant failed to do so. On the contrary, the record supported the
Agency’s position that the selectee was better qualified. For example, the selectee’s resume
included a master’s degree and Agency leadership training that Complainant’s resume could not
match.

Claim 2 — October 23, 2015 “Superior” in lieu of “Outstanding” Performance

Complainant argued that her performance at issue merited an outstanding rating, but her evaluator
downgraded her performance to superior. Indeed, Complainant’s supervisor gave her the highest
possible ratings on the critical elements of the evaluation. Nevertheless, the Agency asserted that
Complainant’s superior evaluation was valid because she was only fully successful, as opposed to
exceptional, in the non-critical component of “teamwork and partnership.” We find that
Complainant has not shown this articulated reason to be pretextual. Although she disagreed with
the ratings that she received, the record does not show that management justifications that are
unworthy of credence. Additionally, Complainant has offered no evidence that similarly-situated
employees who were younger, male or had no record of EEO activity had more favorable
evaluations after performing at an equivalent level.
Claim 3 — March 18, 2016 Nonselection for Promotion to Deputy Director
We find that Complainant failed to show that she was non-selected for the GS-14 management
vacancy based on unlawful criteria. Moreover, EEOC allows agencies greater discretion in
choosing among qualified candidates for upper-echelon positions, such the one at issue in the
instant complaint. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Finally, we have
consistently held that just because an applicant has more years of experience does automatically
make her qualified over others. See Macready v. Dep’t of Justice, EEOC Appeal No. 01991433
(Apr. 4, 2002).

CONCLUSION

Based on this thorough review of the entire record and all contentions on appeal, we AFFIRM the
Agency’s final decision adopting the AJ’s decision without a hearing, finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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.
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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

August 13, 2019
Date