U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ileana H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2021001584 Agency No. APHIS-2020-00670 DECISION 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 December 17, 2020, final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Employee Relations Specialist, GS-12, at the Agency’s Animal and Plant Health Inspection Service (APHIS), located in Raleigh, North Carolina. During the relevant time, RMO 1, Section Chief in Labor Management and Employee Relations (LMER) was Complainant’s first line supervisor. RMO 2, Branch Chief, was Complainant’s second line supervisor. RMO 3, the Deputy Director for Human Resources, Employee and Management Services Directorate, was Complainant’s third level supervisor. 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. 2021001584 2 In February 2019, APHIS Employee Relations (ER) and Labor Relations (LR) were consolidated into one unit and the job titles for both types of Specialists were changed to Labor Management Employee Relation (LMER) Specialists2 within the new division. The LR Specialists were already GS-13s when the change occurred. After the formation of the new unit, in order to obtain a GS-13, the former ER Specialists (GS-11s and GS-12s) were required to complete for the LMER GS-13 Specialist positions when advertised. In 2019, RMO 1, RMO 2, and Acting Branch Chief X were appointed to create an on-the-job (OJT) training program for the ER Specialists. The training program originated when management learned there were at least seven to eight ER employees who “had been working as good employees but did not have enough labor or employee relations documented experience to qualify for the next level.” As a result, a curriculum was created such that if everyone participating passed, they could be certified in the necessary areas and could qualify for the next grade level. The first group of cadre participants began in early 2020 and consisted of four employees who held GS-11/12 ER positions. Those employees were: Complainant, Person 1 (African American, black, female) GS-12, Person 2 (Caucasian, white, male) GS-12, and Person 3 (Caucasian, white, male) GS-11. Near the end of the OJT program, Person 3 was selected for a position at the GS-12 level, which held promotion potential to a GS-13. A vacancy announcement was posted in April 2020 for a HR LMER Specialist, GS-13. Complainant applied for the position and was interviewed on May 28, 2020. Complainant was selected for the position effective August 2020. On June 1, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (black), and disability when: 1. On April 29, 2020, upon completion of the training program, management failed to issue Complainant a Certificate of Completion.3 2. On or about March 31, 2020, Complainant was denied conversion to the GS- 12/13, Human Resources Specialist (HR Specialist) position, PD MR#9MB223. 2 The LMER Specialist position is also referred to in the record as Human Resource Specialist (LMER). 3 The record indicates training ended on April 2, 2020, and the closeout briefing of the training program occurred on April 29, 2020. 2021001584 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 her to discrimination as alleged. 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”). Regarding claim 1, Complainant stated that the OJT program ended on April 2, 2020, and that the closeout briefing occurred on April 29, 2020; however, management failed to issue her a Certificate of Completion until June 23, 2020. Complainant noted that she and Person 1 did not receive a Certificate of Completion when they finished the training. She stated she did not know whether Person 2 and Person 3 received a Certificate of Completion. The record indicates that all participants received a Certificate of Completion on June 23, 2020. Management stated the delay in the issuance of the certificate was due to the fact this was a brand-new training program and because of COVID-19. Management noted that the delay of less than 60 days did not prevent Complainant from being eligible for a higher-level position, nor did the delay prevent her from later being converted to the GS-12/13 HR Specialist position she desired and ultimately secured effective August 2020.4 Regarding claim 2, Complainant claimed that management failed to convert her to a GS-12/13 HR Specialist position upon her completion of the OJT course. Complainant stated she had not received communication from her chain of command regarding conversion to the HR LMER GS-12 position description since April 29, 2020, when RMO 3 stated they would receive a Certificate of Completion and would be converted to the HR LMER MR#9MB223, GS-12/13, position description. Complainant states that Person 1, Acting Branch Chief X, RMO 2, RMO 1, Person 2, and Person 3 were present during the closeout briefing. 4 In her affidavit, Complainant stated the HR LMER GS-13 position was posted in April 2020. She stated she applied and made the certification list and was interviewed on May 28, 2020. 2021001584 4 While Complainant and Person 1 claimed that RMO 3 told them they would receive a Certificate of Completion at the end of the OJT and be converted to the GS-12/13 position description, RMO 3 denied making this statement. Rather, he noted that regulations do not allow movement from a GS-12 to a GS-13 or GS-12/13 LMER position without competition absent special authorities. RMO 3 stated Person 3 is a disabled combat veteran and as such, has a “special authority” that enabled him to be considered for certain positions without having to compete for them as others do. RMO 1 stated the purpose of the OJT program was to enhance the labor and employee relations skills to allow the participants to apply for other jobs and there was never a guarantee upon completion of the program of any non-competitive promotions. RMO 1 stated that it was “happenstance” that OJT ended around the same time Person 3 received his conversion to a position description that allowed for promotion to the GS-13 level. RMO 1 stated he was not Person 3’s supervisor, however, he learned that Person 3 had veteran’s preference and that staffing determined he could be placed in that position description. In addition, RMO 2 reiterated completion of OJT did not mean an automatic grade promotion. RMO 2 recalled that an employee had not received his veteran’s preference when he applied for the HR Specialist position. He stated that as a result, management adjusted for that oversight so he could be promoted to a GS-12. RMO 2 noted that the employee’s position was currently at the GS-11/12 level, so he was not promoted outside of his career ladder. Regarding her claim of disability discrimination, Complainant stated that she had an active reasonable accommodation claim on file and that when RMO 1 became her supervisor, she sent him a copy of the reasonable accommodation packet. Further, she stated her eOPF had supporting documentation that she was a disabled veteran. The Agency noted Complainant put forth no evidence pertaining to her claimed disability or how it was allegedly a factor in the actions at issue. The Agency argued without that information it is unclear she has a disability. Thus, they found she is not a qualified individual with a disability. Further, the Agency noted that RMO 3 stated that he was unaware of anyone else who had “special authority” like Person 3 and that if he had known, he would have granted them the same consideration given to Person 3. Moreover, the Agency argued that Complainant did not meet her burden of proof to establish she was entitled to the same disabled combat veteran status as Person 3 or that she informed the RMOs of such. Upon review, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination on any of her identified bases. The Agency issued Complainant a Certificate of Completion at the same time as other participants. Complainant has not shown that completion of the OJT program entitled her to an automatic change in title or promotion to a higher pay grade without competition. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. To the extent that Complainant is alleging she was discriminated against because she is a veteran, we note that the EEOC does not have jurisdiction over any alleged violation regarding veteran’s preference in hiring/promotion. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. 2021001584 5 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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). 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). 2021001584 6 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 6, 2021 Date
