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

Equal Employment Opportunity Commission

May 10, 2018

0120162087 (E.E.O.C. May. 10, 2018)

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

Miriam B.,1
Complainant,

v.

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

Appeal No. 0120162087

Hearing No. 480-2013-00245X

Agency No. FS-2012-00426

DECISION

On June 8, 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
May 11, 2016, final order 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 order.

BACKGROUND

Complainant worked as a Procurement Technician, GS-1106-06, at the Agency’s Southern
California Acquisition Management Unit in Arcadia, California. On May 7, 2012, Complainant
filed an EEO complaint in which she alleged that the Director of the Acquisition Management
Unit, her second-line supervisor (S2), discriminated against her on the bases of race (Caucasian)
and sex (female) by not promoting her to Procurement Technician, GS-1106-07, on various dates,
most recently on January 31, 2012.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment and
issued a decision without a hearing on April 26, 2016. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

S2 averred that a reorganization had taken place in 2010 which resulted in all Procurement
Technician positions coming within the rubric of Acquisition Management. It was determined that
the minimum grade for those positions in the new organization would be GS-07, and that the only
organizational unit that had GS-6 Procurement Technician positions was the Southern California
unit, which included the Arcadia and Clovis offices. According to S2, the Human Resources
Office decided that whenever a GS-6 Procurement Technician position became vacant, it would
be re-advertised at the GS-7 level rather than be upgraded noncompetitively. Complainant had
inquired on a number of occasions about when she would be promoted. By email dated December
27, 2011, S2 had sent her the following reply:

I tried to do it earlier but we had variations and a tremendous number of vacancies
to work through with HR. HR was pretty much out of it for much of the first half
of the year, filling their own vacancies first. Every time I had to go through
classification [and] it took forever. Now the case is, in my opinion, stronger. Your
position is the only one left. It needs to be made equal to the rest and I intend to
see it happen. Since HR will not have so many things going through, I have greater
hopes of success. * * * [W]hen seeing this type of action, there is a certain
resistance we have to overcome. I think we can do it but accretion of duties is never
a welcome request.

IR 52. S2 averred that at no time did he make any explicit guarantees or promises to Complainant
that she would be promoted to GS-07 by a date certain. IR 76, 82-83.

Complainant maintained that she had been performing job duties above grade GS-06 since October
2010. According to S2 and the HR Director, a desk audit of Complainant’s position conducted on
April 18, 2012 revealed that she had indeed been performing duties that should have been classified
at grade GS-07. The HR Director averred that he advised the management of the Acquisitions
Unit that, in view of the fact that Complainant had initiated an informal EEO complaint on the
matter, any job duties above GS-06 should be immediately redistributed among the Procurement
Technicians who were already at grade GS-07. The HR Director averred that the organization
would maintain the policy of readvertising vacant GS-06 Procurement Technician positions at GS-
07, but had agreed to offer Complainant back pay retroactive to October 2010 and to provide
Complainant with a 120-day detail into a GS-07 vacancy.2 IR 76-77, 86, 101-02. As of the date

2 Complainant averred that on May 24, 2012, she was notified that the Agency would not settle
because her EEO case had been subsumed into a class complaint. IR 79. By letter dated June 27,
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that the IR was submitted, Complainant had been on that detail assignment since June 3, 2012. IR
8.

Several GS-07 Procurement Technician Positions had become available after January 31, 2012.
Two of those positions were located in the Clovis office. One was a Grants Management Assistant
position, the other was a Property Procurement Technician position. Complainant averred that she
did not wish to apply for those positions. IR 42-43, 85-86. Complainant averred that she applied
for the position of Property Technician, GS-1101-07, which was located in the Arcadia office, but
was not selected. IR 43, 46. Complainant also averred that there were once three Procurement
Technician positions in the Arcadia office and that she applied for those positions in June 2012,
after they had been advertised. She further averred that she was notified that her application had
been referred to the selecting official for consideration but that she had not been selected for the
position and was not aware of the job status. IR 46.

S2 averred that two positions were posted in Arcadia, and that one of them was eliminated while
the other was advertised as a GS-1106-07 vacancy during the Summer of 2012. He stated that he
did not know the outcome. IR 85. S2 also averred that two other employees were promoted in the
Arcadia Office to the positions of Grants Management Assistant, GS-1101-07, which Complainant
did not apply for, and Property Technician, GS-1101-07, that she did apply for and was not viewed
as one of the highest qualified applicants by the evaluation panel. IR 83, 87. S2 averred that he
was the recommending official in that selection process and that in his view, Complainant was not
among the top five applicants. IR 90-93, 134. The Selecting Official averred that he had followed
S2’s recommendation IR 94-97.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.

2013, Complainant’s representative was informed that the class complaint had been dismissed and
that the Agency would resume the processing of Complainant’s individual complaint. It does not
appear from the record that the settlement had been consummated. The class complaint, however,
only involved Complainant’s claim of sex discrimination. Her individual claim of race
discrimination had been processed and was decided in favor of the Agency by the AJ. We will
address both bases, race and sex, in this decision.
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Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case.

To prevail in her 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). As a first step, 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.

The prima facie inquiry may be dispensed in this case, however, since S2 articulated a legitimate
and nondiscriminatory reason for Complainant not receiving a promotion to GS-07. See U.S.
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Complainant’s claim
encompasses two instances of nonpromotion. The first was the failure to upgrade the position she
was occupying from GS-1106-06 to GS-1106-07, and the second was the failure to select her for
the GS-1101-07 Property Technician position in July 2012. Regarding the upgrade issue, both S2
and the HR Director stated that upgrades to all Procurement Technician positions would occur
when those positions were vacated and readvertised. As to the merit promotion, S2 stated that
Complainant was not among the top five applicants and consequently, was not referred to the
selecting official for consideration.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

In nonselection cases, Complainant could demonstrate pretext by showing that her qualifications
for the position were plainly superior to those of the selectee. Hung P. v. Dep't of Veterans Affairs,
EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant should bear in mind, however, that
agencies have broad discretion to choose among equally qualified candidates as long as the
selection is not based on unlawful considerations. Complainant v. Dept. of Homeland Security,
EEOC Appeal No. 0120141478 (Jul. 31, 2015). Agencies may select candidates with fewer years
of experience if they believe that such candidates are best qualified to meet the needs of the
organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015).
They may even preselect a candidate as long as the preselection is not premised upon a prohibited
basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9,
2015). Other indicators of pretext include discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
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comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).

With respect to the upgrade, when asked why she believed that S2 had discriminated against her,
Complainant responded that until recently, she was the only white person in the Acquisitions Unit,
and that S2’s lack of action to promote her stemmed from his not wanting to upset the “minority
team.” IR 45. When asked why she believed that she had been subjected to race discrimination,
Complainant stated that she had been bullied and otherwise treated in a rude and demeaning
manner by three African-American women and two Hispanic women, and that management had
refused to intervene to stop this behavior because they did not want to have EEO complaints filed
against them. IR 48-49. When asked why unlawful considerations of her gender played a role in
S2’s actions, she replied that if she had been a male or of a different ethnicity, management would
have created a career ladder for her years ago, and that her potential had been discarded because
she was a “white blonde woman.” IR 49. Beyond these assertions, Complainant has not provided
affidavits, declarations, or unsworn statements from witnesses other than herself nor documents
that contradict the explanations of S2 and the HR Director for not upgrading Complainant’s GS-
1106-06 Procurement Technician position to GS-07, or which call their veracity into question.

With regard to Complainant’s nonselection for the Property Technician position, GS-1101-07, the
position she was applying for was in an entirely different occupational series, GS-1101, as opposed
to GS-1106 series in which the Procurement Technician had been classified. Consequently, the
experience requirements for her position and for the Property Technician position were different.
Again, Complainant did not present any documents or statements beyond her own assertions
tending to show that that she was better qualified than any of the candidates who were referred to
the selecting official. Likewise, she has not presented any statements or documents tending to
establish the presence of any of the other indicators of pretext referenced above.

Nevertheless, Complainant contends on appeal that the AJ erred in finding in the Agency’s favor.
First, she argues that the AJ should have considered her claim of sex discrimination because the
class complaint into which her individual claim of sex discrimination had been subsumed was
dismissed. In reaching our findings, however, we assume that Complainant had established a
prima facie case of both race and sex discrimination. Second, she maintains that there were three
GS-1106-07 Property Technician vacancies in the Arcadia office, and that two of her colleagues
who had been GS-06 Property Technicians had been selected and promoted to GS-07. However,
Complainant has not produced any evidence that corroborates her contention. The statements from
S2, the HR Director, and the Selecting Official all indicate that there were two vacancies in
Arcadia, and that Complainant had applied for one while the other was eliminated.

Therefore, we agree with the AJ that Complainant had not presented enough evidence to raise a
genuine issue of material fact as to whether S2 or any other official involved in the incidents at
issue in her complaint were motivated by unlawful considerations of her race and sex such that a
hearing was necessary to make credibility determinations or findings of fact.
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We further find that the AJ properly found that Complainant had not established that she was
discriminated against as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final order implementing the AJ’s decision without a hearing finding that Complainant did not
establish that she was discriminated against.

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).

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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. 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 10, 2018
Date