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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000410 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marquitta B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2020000410 Agency No. NIFA201800957 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an August 19, 2018 Final Agency Decision (“FAD”) concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the position of Deputy Director (SES) at the Agency’s National Institute of Food and Agriculture (“NIFA”) Institute for Food Safety and Nutrition, in Washington, D.C. On November 3, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Mixed Race; Indian/Native American, Caucasian, African American), sex (Female), and age (70) when, on or about September 3, 2018, she became aware that the Executive Review Board (“ERB”) did not refer her application for the position of Deputy Director (SES), (Vacancy Announcement No. AG2220180064) to the hiring official. 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. 2020000410 2 At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record includes, but is not limited to, the following relevant facts: The Deputy Director position was at the Senior Executive Service (“SES”) level, so, in accordance with SES protocols, applications were reviewed by an ERB convened Agency’s Office of Human Resource Management, Executive Resources Management Division (“OHRM- ERMD”). ERBs were comprised of SES-level employee volunteers and tasked with providing a neutral assessment of the applicants’ credentials, using SES Guidance materials, Executive Core Qualifications (“ECQs”) and Mandatory Technical Qualifications (“MTQs”) for the particular position. After individually assessing the applicants, the ERB confers and then submits the names of applicants whose scores reflect that they are qualified for the SES position. At this point, the ERB’s role has concluded. In sum, the ERB serves as an SES screening mechanism, but does not interview or select applicants. The ERB for the Deputy Director position was comprised of three panelists (“P1,” “P2,” and “P3”). P1 (African-American, female, 65), was the Associate Area Director for the Agency’s Southeast Area, Agricultural Research Services, in Stoneville, Mississippi. Complainant recalls meeting P1 about twenty years earlier, when Complainant was a Ph.D. candidate at Howard University, and P1 taught a seminar course as a visiting professor. Complainant states that they interacted for about 10 to 15 minutes total, as she signed up for P1’s seminar, but left before the first class session was over, finding it “boring” and beneath her capabilities as a Ph.D. student. She also indicates that she was among 8 of the 10 students who signed up to subsequently drop the course and alleges that P1 harbors a grudge against her. Complainant had not met the other two ERB members, P2 (male, 59, race not specified), the Station Director for the Agency’s Pacific Southwest Research Station, Forest Service or P3 (male, race and age not specified), the Chief Financial Officer for the Agency’s Food Safety and Inspection Service, both located in Washington, D.C. The five ECQs (as with all SES positions across the government) for the Deputy Director position were: (1) leading change, (2) leading people, (3) results driven, (4) business acumen, and (5) building coalitions. The vacancy announcement specified that “the ECQs were designed to assess executive experience and potential not technical expertise. They measure whether an individual has the broad executive skills needed to succeed in a variety of SES positions.” In addressing the ECQs, the applicants must also demonstrate “fundamental competencies” such as interpersonal skills, integrity/honesty, and oral and written communication. The two additional MTQs, unique to the position in question, were executive level experience demonstrating: (1) knowledge of the fields of science related to food safety and nutrition, and (2) an ability to lead and manage research, education, and extension programs that address complex problems requiring multi-disciplinary and multi-institutional approaches to resolve. 2020000410 3 On July 19, 2018, Complainant submitted an application package for the Deputy Director position, including narrative statements regarding her ECQs and MTQs, online via USA Jobs. The application and job posting provided extensive, detailed instructions on the ECQs and MTQs for the position, as well as guidance on how to format the narrative statement. By virtue of her three doctoral degrees in Nutrition Sciences (Experimental Nutrition, Community Nutrition, and Nutrition in Human Development), professional experience in the field of nutrition, and over one year of experience equivalent to the GS-15 level, Complainant believed herself to be amply qualified. On August 30, 2018, the ERB members for the Deputy Director position held a conference call to review application packages from six applicants, including Complainant. Both individually, and through consensus, the panelists determined that Complainant’s professional experience was insufficient to qualify for an SES position. The other five applicants were referred for a panel interview and then two finalists were selected for in-person interviews. However, the Selecting Official (male, Caucasian, 68), determined that neither was the right fit, and rather than interview them, canceled the vacancy. Complainant became aware of the cancellation through USA Jobs. On or about September 3, 2018, Complainant emailed her MTQ documents and an “emergency memorandum” to the OHRM Senior SES Human Resources Specialist (“HR”) responsible for processing the Deputy Director selection. HR responded that she could not accept the documents and that certificates were already issued. Complainant replied, “the status you applied to me is wrong and needs to be corrected IMMEDIATELY… the certificate you sent needs to be amended to include me. You made an error on my behalf regarding the evaluation of my MTQs.” HR informed Complainant that her application was never forwarded to the Selecting Official, as it had not made it past the ERB’s review. On September 6, 2018, HR provided Complainant with the ERB’s scores and feedback. Specifically, the ERB cited a lack of leadership experience and poorly written ECQ and MTQ narratives. On a scale of 0-5, P1 rated Complainant 0 for all five ECQs and both MTQs. Complainant alleges that P1 influenced P2 and P3 to lower their scores, which were mostly 2s, as well as a few 1s and 3s to disqualify Complainant from interviewing. In its FAD, the Agency dismissed Complainant’s complaint, finding Complainant failed to establish that she was subjected to discrimination as alleged. The instant appeal followed. 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 2020000410 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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, non-discriminatory 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In nonselection cases, pretext may also be found where the complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Additionally, an employer has greater discretion when filling management level or specialized positions. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Here, the Agency’s legitimate non-discriminatory reason for not referring Complainant to interview for the position of Deputy Director was that the ERB reviewed her application package and determined that she did not meet the ECQs and MTCs required for the position. We find no evidence that the Agency’s use of an ERB as part of its selection process for an SES position was discriminatory. Affidavit testimony from P1, P2, HR, and the Selecting Official explains that the ERB was intended as a neutral screening mechanism for SES qualifications. P2 described the role of ERB members as “very limited” and that their decision making “aligned with established protocols.” The SES ERB Guidelines, developed by the Office of Personnel Management (“OPM”), along with the combination of individual and group assessment supports consistency in ECQ and MTC assessments. 2020000410 5 The USA Jobs vacancy announcement provided all applicants with the same detailed instructions on how to present ECQs and MTBs in narrative form for the ERB’s review, along with a notice that “[a]pplicants who do not demonstrate in their application sufficient possession of the ECQs & MTQs will be determined ineligible for further consideration.” Likewise, Complainant has not demonstrated that she has “demonstrably superior” qualifications to those of the applicants who were selected for interviews before the vacancy was canceled. Rather, the record supports the ERB’s assessment that Complainant lacked SES qualifications for the Deputy Director position, particularly those related to leadership. The role of Deputy Director encompasses both executive-level leadership by supervising and providing technical guidance to a staff of 29, including Division Directors and National Program Leaders, and leadership in formulating and implementing policies and programs at a national level. Complainant’s application materials are devoid of managerial and program leadership experience at or near these scales. For instance, the GS-15 level experience she identifies was from 1988- 1991, in an interim capacity, as Interim Branch Chief, Government of the District of Columbia, Executive Office of the Mayor, Department of Human Services. Since then, Complainant was a full time Ph.D. student, then held positions in education and as a consultant. Complainant challenges the credibility of the ERB, particularly P1, who, she claims has, among other things, “a serious physical and mental health problem [and] lacks spiritual grounding, truth, integrity, faith, gratitude grace and charity.” Complainant disputes P1’s testimony that she did not know Complainant and did not remember the incident where Complainant dropped her seminar course. P1 and P2 (P3 did not provide testimony) both dispute Complainant’s allegation that P1 influenced P2 and P3’s scores, to prevent her from interviewing and receiving an offer for the Deputy Director position. Significantly, even if P1 harbored the grudge against Complainant as she alleged, by Complainant’s own account the grudge was not based on discriminatory animus. We find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether discrimination on the bases of race, sex, or age occurred. See 29 C.F.R. § 1614.108(b). If Complainant wanted an opportunity to develop the record through discovery and cross examination of witnesses, she should have requested a hearing before an AJ. Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Alternately, Complainant challenges the ERB’s educational and professional qualifications to review her application package, and the legitimacy of the SES selection process. Specifically, she alleges that the ERB favored applicants who completed the Senior Executive Services Candidate Program over those with equivalent private-sector experience. Setting aside the fact that these issues do not concern discriminatory motive, which Complainant must establish to overcome the Agency’s legitimate nondiscriminatory reason, we addressed similar points in Anne C. v. Department of Health and Human Services, which also involved an instance where Complainant applied for an SES level position but was not referred for an interview. EEOC Appeal No. 2019005804 (Oct. 14, 2020) recon. denied EEOC Request No. 2021000985 (Feb. 17, 2021). As with Anne C., Complainant is essentially asking the Commission to instruct the Agency to substitute the qualifications Complainant deems important (education), over those 2020000410 6 prioritized by the Agency, (leadership experience) when filling an SES vacancy. Such a request is outside the scope of EEOC Authority. CONCLUSION Accordingly, we AFFIRM the Agency’s dismissal of Complainant’s complaint. 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. 2020000410 7 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 June 3, 2021 Date