Priscila F.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Apr 29, 2016

0120141483 (E.E.O.C. Apr. 29, 2016)

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

Priscila F.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120141483

Agency No. APHIS-2013-00212

DECISION

The Commission accepts Complainant’s appeal from the February 10, 2014 final Agency
decision (FAD) 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. 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 was an applicant for
employment with the Agency in Raleigh, North Carolina. Complainant had previously
volunteered for the Agency. On October 11, 2012, Complainant applied for a Wildlife
Specialist (Biological Science Technician) position announced through a widely distributed
recruitment announcement. The announcement stated that the position involved working
closely with private individuals and government officials in conducting an efficient and
effective beaver damage control program with an emphasis on trapping and removing nuisance
beavers. The position was to last approximately six months. Complainant was one of seven
candidates interviewed by the District Supervisor (S1). S1 asked the candidates the same 14
questions and scored the candidates based on their responses. Complainant received a score of
23.5, which ranked her sixth of the seven candidates. As a result, S1 did not recommend
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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Complainant for selection. The selecting official (SO) ultimately selected the Selectee, who
was the second-highest ranked candidate (27.5).

On February 20, 2013, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when, on
November 5, 2012, she learned that she was not selected for a Wildlife Specialist (Biological
Science Technician) position located in Wake, Johnson, and Harnett counties.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a FAD. In
accordance with Complainant's request, 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 determined that management articulated legitimate, nondiscriminatory
reasons for not selecting Complainant. Specifically, the Selectee was recommended and
selected because his interview and application demonstrated his substantial experience in
wildlife management, including sampling of animals for diseases; responding to cooperators
for wildlife damage; assisting with vaccinations; managing livestock damage to predators;
managing Canadian geese; collecting data on wildlife hazards; and trapping with the use of
cage traps, foothold traps, and snares. In addition, the Selectee had a Bachelor of Science
degree in Wildlife Management with a minor in Animal Science, while Complainant had a
degree in French with four months of volunteer wildlife management experience.

The Agency concluded that Complainant failed to show that her qualifications were
demonstrably superior to the Selectee’s or that management’s reasons for not selecting her
were pretextual. As a result, the Agency found that Complainant had not been discriminated
against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency based its decision on partial, irrelevant, and
corrupt evidence without consideration of the evidence she submitted. Complainant contends
that the record evidence supports her claim that she was subjected to discrimination, and that
the Agency merely restated management officials’ explanation for not hiring her. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

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). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would

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support an inference of discrimination. Furnco Constr. Corp. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination, record
evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for not
selecting her. More specifically, S1 affirmed that he interviewed seven candidates for the
position in November 2012, and that he asked the same 14 questions to allow each candidate to
demonstrate their experience. ROI, at 59-60. S1 stated that he scored the applicants’
responses, and subsequently contacted the references of the top three rated candidates. Id. at
60. S1 ranked Complainant sixth of the seven candidates. Id. S1 explained that he
recommended the Selectee based on his approximately 21 months of experience with the
Agency working full-time as a wildlife specialist. Id. S1 affirmed that the Selectee’s extensive
experience in managing wildlife damage included sampling of animals for diseases; responding
to cooperators for wildlife damage; assisting with rabies vaccination of wildlife; managing
livestock damage to predators; managing Canadian geese; collecting data on wildlife hazards at
airports; and trapping with the use of cage traps, foothold traps, and snares. Id. By contrast,
S1 noted that Complainant had approximately four months of experience with managing
wildlife damage as a volunteer assisting other wildlife specialists. Id. Further, S1 confirmed
that the Selectee had more experience working with cooperators managing wildlife damage,
had a more extensive background in wildlife management including a degree in Wildlife
Sciences and a minor in Animal Science, and he had more training and certifications relevant
to the position. Id. Thus, S1 maintained that he recommended the Selectee for selection as he
was the most qualified candidate. Id. at 61. Based on S1’s recommendation, SO selected the
Selectee. Id. at 55.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. 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. at 256. 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.

The Commission finds that Complainant failed to show that her qualifications for the position
were plainly superior to those of the Selectee. In this case, the Selectee had attributes that
justified his selection, and the selection officials involved all affirmed that they believed that
the Selectee was better equipped to meet the Agency's needs. In the absence of evidence of

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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.

As Complainant chose to not 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 that the record lacks evidence that the Agency’s selection or the selection
process was tainted by discriminatory animus. 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 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 she was subjected to discrimination 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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

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C.F.R. § 1614.604. 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. 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 29, 2016
Date