[Redacted], Bart L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2020005156 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2020005156 Agency No. FPAC-2020-00045 DECISION On September 14, 2020, 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 18, 2020, final decision concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on national origin, sex, age, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-2210-12 Information Technology Specialist in the Agency’s Business Center, Information Assurance Branch, Information Solutions Division, Farm Production and Conservation (FPAC) in Fort Collins, Colorado. Complainant is a heterosexual Hispanic male and was born in March 1978. 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. 2020005156 2 Complainant averred that he first engaged in protected EEO activity on October 9, 2019, when he contacted an EEO Counselor regarding the instant complaint. In January 2019, Complainant’s first-line supervisor was the Operations Section Chief (S1), and his second-line supervisor was the Chief Information Security Officer (S2). Complainant averred that S1 resigned in June or July 2019, at which time S2 acted as his immediate supervisor. S2 worked out of Kansas City, Missouri, and Complainant stated that he was the only employee in the chain of command who worked out of Fort Collins. In September 2019, the Assistant Chief Information Security Officer (S3) acted as Complainant’s immediate supervisor for approximately one month. On October 15, 2019, the new Operations Section Chief (S4) became Complainant’s new first-line supervisor, and S3 became his new second-line supervisor. Complainant named S2 as a responsible management official who subjected him to discrimination. According to Complainant, S2 was aware of Complainant’s sexual orientation since Complainant started working at the FPAC Business Center because Complainant introduced himself in January 2019 by mentioning that he lived with his fiancée, who has a female name, and children. Complainant averred that S2 was aware that he was Hispanic based on his appearance and his last name. Complainant stated that he thought that he had a good working relationship with S2, noting that S2 temporarily placed him in a leadership position. In June 2019, Complainant timely applied for three GS-2210-13 Information Technology Specialist positions advertised under vacancy announcement number FPAC-19-10530382-DH- ISD-SF, located in Fort Collins, Washington, D.C., and Kansas City. Complainant stated that S2 was the selecting official. Complainant was found to be ineligible because he did not possess one of the certifications listed as a mandatory selective placement factor in the vacancy announcement. The vacancy announcement stated that applicants “must possess a CompTIA Security+ certification, NIST Cybersecurity Framework (NCSF) Practitioner certification, a certification from” one of five listed organizations, or college undergraduate-level training or education in cybersecurity. Report of Investigation (ROI) at 64. Complainant alleged that S2 tailored the vacancy announcement to exclude him from consideration by requiring a certification that he knew Complainant did not have as a mandatory selective placement factor. According to Complainant, S2 had added him as a contact on LinkedIn shortly before the positions were posted, so he was aware of Complainant’s education, work history, and certifications, or lack thereof. On August 27, 2019, S2 sent an email congratulating the selectee for the GS-13 position in the Operations Section (C1). Complainant averred that C1 is a White male in his 30s and that he and S2 are close friends. Complainant alleged that, not only did S2 write the vacancy announcement so Complainant would be ineligible, but S2 tailored the announcement so that C1 would be selected. 2020005156 3 Complainant averred that, although he did not have the required certification, he was very well qualified for the positions and had performed some of the position’s duties when S2 temporarily placed him in a leadership position. According to the record, on September 17, 2019, Complainant was recognized with an award at the FPAC Business Center Chief Operating Officer (COO) Awards Ceremony. Complainant averred that the award recognized his outstanding contributions in a leadership capacity. Complainant averred that, after he learned that he was not selected for one of the GS-13 positions, he heard that S2 made a racist remark, asking two coworkers, “If Trump can talk about building a wall to keep the Mexicans out, why can’t they say it?” ROI at 100. According to Complainant, all three of the selectees for the GS-13 position were White. Complainant added that S2 had tended to promote younger employees and White employees over the years. S1, who is Asian, stated that S2 definitely gave preferential treatment to C1 and that S2 also tended to favor employees who were part of the “[W]hite boys club or whatever you want to call it.” ROI at 175. According to the record, September 6, 2019, was S2’s last day as a federal employee, although he subsequently returned to the Agency as a contractor.2 On November 5, 2019, S4 issued Complainant his performance evaluation for the period from October 15, 2018, through September 30, 2019. S4 rated Complainant as “Meets Fully Successful” in each of the four performance elements, which resulted in an overall rating of “Fully Successful,” or 3 out of 5. Complainant refused to sign the evaluation, noting that he had received a “Superior,” 4 out of 5, rating every year since FY 2015. Complainant averred that S4 issued the performance evaluation despite not having been his supervisor during the evaluation period. S4 stated that, since she did not supervise Complainant during the rating period, she based the ratings on information from S2, who had been Complainant’s previous manager, as well as information from the Acting Engineering Section Chief (S5). S4 averred that she did not have any information from S1 to incorporate into Complainant’s rating. According to S1, Complainant’s performance was excellent, and he performed work above his grade level during FY 2019. S1 averred that, when he gave Complainant his mid-term evaluation in April or May 2019, he was on track to receive a rating of 4. S4 stated that she did not have access to the mid- term evaluations for Complainant or his coworkers, and she added that neither S1 nor S2 left any information about the performance of their subordinates. S5 stated that, although he did not supervise Complainant, they worked together on a team from May to August 2019 for process alignment for the Operations Section. According to S5, he told S4 that Complainant’s deliverables had been submitted on time and that Complainant’s self-assessment was accurate regarding his work for the process alignment team. S3 stated that, based on the three weeks he supervised Complainant in September 2019, he did not see a reason to adjust the “Fully Successful” rating. 2 S2 declined to participate in the EEO investigation. 2020005156 4 Complainant initiated contact with an EEO Counselor on October 9, 2019. On December 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic),3 sex (male), sex (sexual orientation, heterosexual),4 age (born in March 1978), and reprisal for prior protected EEO activity (initiating the instant EEO complaint) when: 1. On August 27, 2019, he learned that he was not selected for one of the three GS- 2210-13 Information Technology Specialist positions advertised under vacancy announcement number FPAC-19-10530382-DH-ISD-SF, located in Fort Collins, Washington, D.C., and Kansas City; and 2. Management issued him a performance rating of “3” for his performance evaluation, although he had performed duties higher than his grade level and had received a performance rating of “4” for the past six years. At the conclusion of 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). In accordance with Complainant’s request, 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 him to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that C1 was preselected for the GS-13 position and that the certification in question, a simple security class, did not make him more qualified than Complainant. Complainant also notes that C1 was selected even though he was not one of the best qualified candidates. In response to Complainant’s appeal, the Agency requests that the Commission affirm its final decision. 3 Although Complainant designated his race as “Hispanic,” the Commission recognizes this term as an indication of national origin rather than race. Accordingly, we will address his claim as involving an allegation of national origin discrimination. 4 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020005156 5 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”). To prevail in a 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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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). 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. 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). The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant was that he did not possess one of the certifications listed as a mandatory selective placement factor in the vacancy announcement. As evidence of pretext, Complainant contends that C1 was preselected for the position and that S2 tailored the vacancy announcement so Complainant would not be eligible. Complainant also argues that C1’s certification did not make him more qualified than Complainant for a GS-13 position. We have consistently recognized that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Moreover, mere assertions or suppositions by Complainant are not enough to establish pretext. Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016, (Dec. 11, 2003). Neither is it enough for Complainant to simply disagree with the Agency's actions. Harris v. Dep't of the Army, EEOC Appeal No. 01940486 (Sept. 6, 1994), request to reconsider denied, Harris v. Dep't of the Army, EEOC Request No. 05950046 (Mar. 21, 1996). We further have consistently stated that pretext analysis is not concerned with whether the Agency's action was unfair or erroneous but whether it was motivated by discriminatory animus. Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). 2020005156 6 Complainant reported that he heard secondhand that S2 made a comment about building the border wall to keep out Mexicans, and S1 generally stated that S2 was biased against non-white employees. However, upon review, we find that Complainant has not established by preponderant evidence that the Agency’s legitimate, nondiscriminatory reason for not selecting him for one of the GS-13 positions was pretextual. The Agency’s legitimate, nondiscriminatory reason for rating Complainant “Fully Successful” was that, based on the feedback from S2 and S5, S4 determined that Complainant met, but did not exceed, the expectations for his position. Although Complainant attempts to show pretext by pointing out that S4 did not supervise him during the rating period and that S1 told him that he was on track to exceed “Fully Successful,” this does not establish pretext for discrimination. The record reflects that S4 rated all of the employees she had not supervised based on input from prior supervisors, such as S2, and without access to the midyear evaluations from S1. Complainant has not established that the Agency’s legitimate, nondiscriminatory explanation for his performance evaluation was pretextual. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020005156 7 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005156 8 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 October 4, 2021 Date