[Redacted], Odilia M., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020002053 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odilia M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020002053 Agency No. FSIS-2019-00467 DECISION On January 19, 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 December 18, 2019, 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. ISSUE PRESENTED Whether the Agency correctly concluded that Complainant was not subjected to discrimination based on race, color, disability, and reprisal for prior EEO activity with respect to two nonselections as alleged. 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. 2020002053 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resource (HR) Specialist, GS-12, at the Agency’s Office of Management, Human Resources Operation Division (HROD) in Minneapolis, Minnesota. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), color (Not Specified), disability (mental/depression- emotional distress), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. on February 19, 2019, Complainant learned she was not selected for the HR Specialist (Section Chief), GS-0201-13 position, advertised under Vacancy Announcement Number: FSIS-2019-MMP-0089; and 2. on February 14, 2019, Complainant learned she was not selected for the Litigation Specialist, GS-12 position, advertised internally within the Agency HR Division, Minneapolis office. Claim 1 Complainant alleged that she applied and was interviewed for the position at issue. Complainant asserted that the interview panel members were aware of her race and color, but that she was unsure if they were aware of her emotional distress. Complainant asserted that an event that occurred in 2010, when she was removed from a supervisory position, came up during the interview. Complainant stated that the interview panel discussed the event negatively; and that she attempted to explain that the Agency decided to give her position to a coworker (C1) pursuant to C1's race discrimination case. Complainant argued that race and color were factors in her non-selection for the position at issue because of the 2010 job transfer and the lengthy discussion about that event during the interview. Complainant indicated that being removed from her supervisory position in 2010 had a negative impact on the selection. Complainant asserted that there were two selections from the vacancy. Complainant identified the first selectee (Selectee1) (Caucasian, white female of unknown disability status or prior EEO activity) and the second selectee (Selectee2) (Caucasian, white male of unknown disability status or prior EEO activity). Complainant argued that she was the best suited candidate for the job over the Selectees because she was with the Agency for over 14 years and was selected for a supervisory position where she oversaw two major projects. Complainant also asserted that she received mostly Superior ratings with an occasional Outstanding rating, as well as the Department’s Service of Excellence Award. Complainant stated that she has received many awards and recognition for her work with the Agency and has never been disciplined. Complainant asserted that she has many years of HR experience with the Agency. 2020002053 3 Complainant stated that her emotional distress was a factor because it came up during her feedback meeting with her third-level supervisor (S3), a panel member, and the Selecting Official (S1). Complainant stated that the emotional distress of not being promoted and previously being removed from her supervisory position in 2010, was discussed in the feedback meeting. Complainant indicated her belief that SO1 and S3 may have had the impression that she did not want to stay within the Agency. SO1 indicated that after identifying the top two-three best qualifying candidates, the interview panel sent the names to him and S3. SO1 indicated that he and S3 reviewed the initial interview results for a follow-up interview for the position at issue, a leadership position. SO1 stated his belief that at least two or three candidates were referred for a second interview. SO1 attested that the Selectees had great leadership and communication skills and were the best fit for the position. SO1 stated that he was unaware of the Selectees' race, color, disability status, and prior EEO activity. S3 indicated that four top candidates were chosen for a second round of interviews. S3 asserted that Complainant was interviewed in the first round, but not in the second round of interviews. S3 stated that Complainant was not ranked within the top four candidates. S3 asserted that Complainant was rated sixth. S3 asserted that Selectee1 was chosen to fill the vacancy because she was a Staff Specialist and had the technical proficiency in the area of the position. S3 noted that Selectee1 was the top scorer on the interview and had military leadership experience. S3 asserted that Selectee2 had experience as a supervisor in the military workforce, his problem- solving and analytical skills were excellent, and he had the skill set management was looking for on the leadership team. Complainant’s coworker (C2) who was also a panel member stated that she became aware of the 2010 event alluded to by Complainant when Complainant discussed the event during the interview. C2 asserted that she tried to stop Complainant from discussing the event in her interview because C2 found the discussion to be inappropriate. C2 indicated that the event had no bearing on the selection decision-making process. Claim 2 Complainant alleged that she applied and was interviewed for the position at issue. Complainant asserted that the Panel members were aware of her race, color, and "very aware" of her emotional distress about the 2010 event. The selectee (Selectee3) (Caucasian, white male of unknown disability status or prior EEO activity) was chosen for the position at issue. Complainant asserted that she has well-rounded experience that the position required; and that she should have been selected. Complainant stated that her race and color were factors in her being removed from her supervisory position in 2010. Complainant reiterated that the 2010 event led her to believe that the her prior EEO activity as well as race and color were factors in her non-selection. Complainant added that a coworker (C3) who was a panel member, was privy to the details of 2020002053 4 the 2010 event and confirmed it during the interview. Complainant stated that C3 confirmed that Complainant was removed from her supervisory position due to no fault of her own. Complainant asserted that she has worked hard and diligently to learn her position and to contribute to the Agency. S3 served as the recommending official for the vacancy at issue. S3 stated that seven people were referred for consideration, including Complainant who was also interviewed. S3 attested that the panel asked the same questions to each candidate and the panel members rated each response. S3 asserted that the panel scored each response from 1-5, added the total score for each, and compared notes and came to a combined final rating for each candidate. S3 asserted that they looked at the top three ranked candidates and conducted reference checks for them. S3 stated that Complainant was ranked 2nd among the candidates. S3 asserted that the panel recommended Selectee3. S3 asserted that she worked with Selectee3 for a year and a half as a section chief. S3 attested that Selectee3 learned quickly, did well with handling competing authorities in high stress level situations effectively, and maintained a calm demeanor in high stress situations. S3 stated that both Selectee3 and Complainant had great communication and analytical skills. S3 asserted that she compared the writing and verbal capabilities and the ability to manage conflicting and competing authorities of both Selectee3 and Complainant. S3 stated that Selectee3 excelled in those areas over Complainant. S3 stated that Complainant brought up the 2010 event "on her own" and used the event to demonstrate how she handled being taken out of a supervisory position. S3 asserted that she thought Complainant handled the situation well. C3 provided supporting statements. C3 stated that Complainant's emotional distress was a small concern but only because that condition could be an issue in the position since it involved dealing with high stress, working with judges and attorneys. C3 stated that Complainant has a well-rounded background and knowledge in HR. C3 added, however, that Selectee3 has strong communication (verbal and written) skills. C3 explained that Selectee3 was a current supervisor leading a team of HR staff, and has a strong background in research, writing, and communication. C3 maintained that Complainant experiencing emotional distress had no bearing on C3’s decision since C3 recommended Complainant and two other candidates to S3, who made the final selection decision. C3 also noted that Complainant brought up the 2010 event "on her own" and used the event to demonstrate how she was flexible in being taken out of a supervisory position and excelled in another position. In rebuttal, Complainant mainly reiterated her allegations. Complainant attempted to point out discrepancies in management’s responses to Claim 1. Complainant indicated that S3, not SO1, made the final decision. Complainant also indicated that SO1’s statements were to shield S3 from S3’s selection decision. Complainant indicated that two panel members made their decision based on questioning of Complainant’s removal from her Supervisory position with the Agency in 2010, during the interview. 2020002053 5 Complainant disputed both panel members’ testimony, stating that the 2010 event was discussed at length during her interview, thus making it a very prominent factor in the panel’s selection decision. With respect to Claim 2, Complainant asserted that she anticipated a similar issue during her interview as she experienced in her interview for the Section Chief position. Complainant stated that she attempted to show the Agency that, in 2010, she was flexible and took a demotion for the good of the Agency by giving up her Supervisory position. Complainant indicated her belief that her explanation was not seen as a positive based on C3’s testimony. Complainant stated that S3’s testimony is not believable because of S3’s attempt to minimize the discussion of the 2010 issue during the interview. Complainant did not believe S3’s claim that the discussion of the 2010 event did not influence S3’s decision. Complainant concluded by stating that she has always attempted to keep her supervisors aware of the stress and distress she experienced while performing her duties; and that C3 was an excellent supervisor who always provided her with support. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Statement, Complainant asserts that the Agency failed to properly handle the 2010 discrimination claim. Complainant indicates that the Agency’s failure resulted in discrimination and retaliation against Complainant in 2018. Therefore, Complainant indicates, decisions were made to not promote Complainant based on false information and conclusions by decision makers. Complainant requests relief and corrective action. The Agency states that Complainant offered no cogent challenge to the FAD’s rejection of her reprisal claim. The Agency asserts that Complainant’s role in the discrimination alleged in the EEO case resolved in 2010, is not a protected role that can give rise to a reprisal claim. The Agency indicates that Complainant did not refute testimony of the selecting officials that factors other than her 2010 reassignment led to her sixth-place ranking in the first selection and her second-place ranking in the second. The Agency requests that the Commission affirm its FAD. STANDARD OF REVIEW 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 2020002053 6 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”). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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, 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. 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). Regarding Claim 1, the record indicates that Complainant was not selected for the HR Specialist (Section Chief), GS-0201-13, position because Complainant was not selected for the second round of interviews. Both SO1 and S3 stated that Complainant was not selected for a second round of interviews because she ranked sixth. Therefore, Complainant was not one of the four top ranked candidates to be considered for selection in the second round of interviews. S3 also asserted that Selectee1 was selected because she was a Staff Specialist and had the technical proficiency in the area of the position. S3 noted that Selectee1 also had military leadership experience. S3 indicated that Selectee2 was also selected because he had experience as a supervisor in the military workforce; and because he had excellent problem solving and analytical skills. Selectee2 also had the skill set management was looking for on the leadership team. 2020002053 7 Regarding Claim 2, the record indicates that Complainant was not selected for the Litigation Specialist, GS-12 position because S3 preferred Selectee3’s experience and capabilities to those of Complainant. S3 stated that Complainant was ranked second amongst the candidates. S3 also stated that she compared the writing and verbal capabilities and the ability to manage conflicting and competing authorities of both Selectee3 and Complainant. S3 asserted that Selectee3 excelled in those areas over Complainant. Therefore, upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its decisions in Claims 1 and 2. We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. As to Claim 1, Complainant stated that she had well-rounded experience that the position required; and that she should have been selected. Complainant however did not refute S3’s explanations for selecting Selectee1 and Selectee2. Neither did she present any evidence to show that she possessed demonstrably superior qualifications or that she was more experienced than the two selectees. In response to Claim 2, Complainant asserted that she has worked hard and diligently to learn her position and to contribute to the Agency. Complainant however failed to refute S3’s reasons for selecting Selectee3. Nor did she present any evidence to show that she possessed demonstrably superior qualifications or that she was more experienced than Selectee3. Burchfield v. Dep’t of the Treasury, EEOC Appeal No. 01970152 (Apr. 6, 2000) and Williams v. Dep’t of Educ. EEOC Request No. 05970561 (Aug. 6, 1998) (positing that in a promotion case, the complainant may establish pretext by showing that his or her qualifications were plainly or demonstrably superior to those of the individual who was selected)). Rather, Complainant indicates that her non-selections in 2018 are linked to a 2010 event which resulted in her transfer from a supervisory position due to no fault of her own. Complainant asserts that the Agency failed to properly handle the 2010 discrimination claim, indicating that the Agency’s failure resulted in discrimination and retaliation against Complainant in 2018. However, Complainant’s assertions are not supported by the evidence in this case. In fact, C2 and C3, Complainant’s own coworkers who were panel members, both affirmed S3’s statements that Complainant brought up the 2010 event at her interviews for the positions in Claims 1 and 2 on her own. C2 even indicated that she tried to stop Complainant from discussing the event at the interview in Claim 1, but Complainant did not stop. Complainant did not refute C2’s testimony. For Claim 2, even C3, who had recommended Complainant as one of three top candidates, maintained that Complainant experiencing emotional distress had no bearing on C3’s decision. Complainant failed to demonstrate by her testimony, and she does not present any evidence to show, that the 2010 event was in any way linked to her 2018 non-selections. Instead, Complainant offers conclusory statements indicating that decisions were made to not promote Complainant based on false information and conclusions by decision makers. The Commission is not in the position to entertain vague and conclusory allegations that create a tenuous nexus between an adverse action and an inference of discrimination without corroborating evidence. Cumberbatch v. U.S. Postal Serv., EEOC Appeal No. 0120122253 (Oct. 2020002053 8 11, 2012) (finding that the Complainant's assertions, made without support, were insufficient to show that the Agency's reasons constituted pretext for discrimination). 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. 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. 2020002053 9 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 July 12, 2021 Date