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

Equal Employment Opportunity Commission

Dec 27, 2021

Appeal No. 2021003204 (E.E.O.C. Dec. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gary S.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021003204 Hearing No. 570-2020-00747X Agency No. FAS-2019-00595 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2021, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer (FSO), FO-2, at the Agency’s Agricultural Trade Office in Monterrey, Mexico. On May 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Hispanic) and national origin (Honduran) when, on November 16, 2018, he was not selected for the FSO, FO-1 position located in Guatemala, nor the FSO, FO-22 position located in Venezuela. 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 The claim as defined by the Agency categorized the position in Venezuela as FO-3, but the record indicates that the Venezuela position was an FO-2 position, not FO-3. 2021003204 2 Complainant requested a hearing before an AJ. The AJ assigned to the case notified the parties, sua sponte, of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the Report of Investigation and viewing the evidence in the light most favorable to Complainant, he failed to create a genuine issue of material fact to establish discrimination based on race or national origin. Assuming Complainant could establish a prima face case of discrimination, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Each position at issue was classified by the Agency at a particular FSO level. FSOs are classified as FO-1, FO-2, and FO-3, with the FO-1 being highest and most experienced level. The Agency categorized the Guatemala position as FO-1 and the Venezuela position as FO-2. FSOs within one grade of an open position were eligible to apply. During the bidding process for open positions, employees could sort each position to which they applied by choice preference. At the time Complainant applied for both positions, he was in the first year of a three-year assignment in Monterrey, and either position, had he been selected, would have resulted in a curtailment of his Monterrey assignment. Complainant listed the Guatemala position as his first-choice preference, and the Venezuela position as his second choice. As the AJ concluded, the Agency did not select Complainant for the Guatemala position for several reasons. First, the selectee (FSO1) was ranked as FO-1, which was the same grade as the position, and the selecting officials wished to “fill the position at rank.” Complainant was ranked as FO-2. FSO1 also “had significant experience managing overseas posts, including having served as Head of Post and Head of Office, in contrast to Complainant, who had just over one year of experience.” FSO1 also “had experience managing large and/or complex development projects.” Lastly, FSO1, in her then-current position, was serving in a position categorized as FO-2, and the Agency felt that selecting her to the Guatemala position “allowed the Agency to better utilize her FO-1 experience in a position at her rank level.” As to the Venezuela position, the AJ found that the Agency also articulated legitimate, nondiscriminatory reasons for choosing a different FSO (FSO2) for the position over Complainant. At the time the Agency was accepting applications for the position, “Venezuela’s political and economic instability” led the Agency to be “uncertain” as to whether the post was viable. Consequently, management knew that the assigned FSO would be performing considerably fewer duties than usual.3 Taking the Venezuela position also would have required Complainant to curtail his Monterrey assignment “by at least one year.” The Agency had a “strong interest in Complainant continuing to serve” his full assignment in Monterrey. 3 In its brief on appeal, the Agency states that on March 11, 2019, prior to the commencement of FSO2’s assignment in Venezuela, “the political and economic conditions in Venezuela became so volatile that the United States closed its Venezuelan embassy, requiring the Agency to cancel the assignment.” 2021003204 3 The AJ found that the record supported the Agency’s contentions that Complainant’s Monterrey post “was an important, high-profile position, since it facilitated border trade for one of the country’s largest agricultural export markets such that it was more important for the Agency to keep that position occupied to maintain office continuity” and that the Monterrey position “is hard to fill.” Based on these circumstances, the Agency chose FSO2, who was ranked FO-3, for the Venezuela position over Complainant, who was ranked FO-2. Management “explained that it was neither in the Agency’s interest to underutilize a higher ranked FO-2 officer for the position, nor in an FO-2 officer’s interest to be assigned to a post with fewer responsibilities and opportunities, which is why the Agency wanted to select a[n] FO-3.” Furthermore, FSO2 “had bid for Venezuela as his first [selection] . . . and would not have had to curtail [his then-current assignment] in order to take this position.” The AJ concluded that “the Agency has articulated legitimate, nondiscriminatory reasons for its actions, and [C]omplainant has failed to set forth any facts or evidence to demonstrate that those reasons are pretextual.” ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the nonmoving 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 fact is “material” if it has the potential to affect the outcome of the case. 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 Chap. 9, § VI.B. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute.4 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 4 We note that, in addressing an AJ’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Here, Complainant’s allegations that the Agency did not select him for either position because of his race and national 2021003204 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s 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. 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). origin, that the Report of Investigation is “a fraud” and “dishonest,” and that the AJ is biased in favor of the Agency, are unproven assertions without evidentiary support. 2021003204 5 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. 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 December 27, 2021 Date