[Redacted], Kiara R., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.Download PDFEqual Employment Opportunity CommissionOct 12, 2021Appeal No. 2021000637 (E.E.O.C. Oct. 12, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2021000637 Hearing No. 550-2017-00036X Agency No. FS-2016-00424 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated August 24, 2020, finding no discrimination regarding her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Service Assistant, GS-0186-06, at the Agency’s Columbia Basin Job Corps in Moses Lake, Washington. On April 13, 2016, Complainant filed her complaint alleging discrimination and harassment based on sex (female), age (over 40), and in reprisal for prior EEO activity when: 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. 2021000637 2 1. On February 7, 2016, she learned that she was not selected for the GS-0186-07, Social Services Assistant (SSA) position, advertised under Vacancy Announcement Number 16- JC-192752-FS-RM; and 2. On unspecified dates, she was subjected to various acts of harassment when her second level supervisor (S2) directed demeaning statements to her, such as, “You don’t listen,” and “[T]he problem with you is you don’t listen.” Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 21, 2020, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Regarding claim 1, the Human Resources (HR) Specialist indicated that the GS-0186-06/07, SSA position was posted in USAJobs under Vacancy Announcement Number 16-JC-192752-FS- RM. Under that vacancy, applicants could apply for a GS-06 and/or GS-07 position. Complainant applied for only a GS-07, SSA position. Some applicants applied for both GS-06 and GS-07 positions. Four certificates were created for the vacancy: a GS-06 noncompetitive certificate with five applicants; a GS-06 competitive certificate with two applicants; a GS-07 noncompetitive certificate with three applicants; and a GS-07 competitive certificate with one applicant, i.e., Complainant. The HR Specialist indicated that the hiring manager had an option to utilize any one of the certificates. Further, the HR Specialist stated that since there was only one vacancy, the hiring manager would have had to pick only one of the certificates. The Residential Living Manager was a lead member for three review panel members for the selection process. The Manager indicated that the panel received the four certificates from HR, and he picked a GS-06 noncompetitive certificate for the selection because it contained the greatest number of applicants. Complainant name was not on that certificate and thus she was not considered for the position. The Selectee, a GS-05, SSA, male, who applied for a GS-06, SSA, from the GS-06 noncompetitive certificate, was selected for the GS-06, SSA position. Regarding claim 2, S2 indicated that he held a meeting between October 2015 and January 2016, with Complainant and Employee A concerning out of state EEO training they were scheduled to attend. Since they were going to the same place/location, S2 instructed Complainant to put a plane ticket on her travel voucher and Employee A to put a rental car on his travel voucher. S2 indicated that later, Complainant submitted to S2 her travel voucher for a rental car that S2 already approved for Employee A. S2 acknowledged that he held another meeting with Complainant and Employee A and told Complainant about the voucher situation that, “What I need you to do, [Complainant], is listen to what I’m telling you. Please be clear and please listen. When I asked you not to put a rental car on your voucher, my expectation was you’re not going to put it on there.” 2021000637 3 Employee A indicated that he was present at the meeting when S2 told him and Complainant about the EEO training out of state. Employee A stated that S2 was not demeaning toward Complainant and made the remarks, described above, because Complainant kept interrupting S2 while S2 was talking to her. Complainant’s union steward was also present at the meeting when S2 made the remark at issue. The steward indicated that S2’s remarks were not demeaning and were justified because Complainant kept talking over and interrupting S2 while S2 tried to explain to her what she needed to do for her travel and the reason she was not allowed to rent a car. Complainant appeals from the Agency’s final order. 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. 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 2021000637 4 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting her for the SSA position at issue. The Agency posted the vacancy announcement for the GS-06/07, SSA position. Candidates were allowed to apply for a GS-06 and/or GS-07 grade level position. The hiring manager picked a GS-06 noncompetitive certificate out of four certificates provided by HR for the selection because it contained the greatest number of applicants. Complainant applied only for a GS-07 grade level and she was not on that certificate. Complainant thus was not considered for the position and she was not selected. The Agency ultimately selected the Selectee from the GS-06 noncompetitive certificate for the GS-06, SSA position effective February 21, 2016. Regarding claim 2, the record reveals that S2 made the remarks at issue because Complainant failed to follow his instructions for submitting a travel voucher and kept interrupting him when he was trying to explain to her what she needed to do in order to submit her travel voucher in a proper manner. The witnesses stated that S2’s remarks were not demeaning toward Complainant as alleged. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding her claim of harassment, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant failed to show that any of the actions were motivated by discrimination as alleged. CONCLUSION Accordingly, the Agency’s final order 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 2021000637 5 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). 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. 2021000637 6 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 October 12, 2021 Date Copy with citationCopy as parenthetical citation