Rick G.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Mar 3, 2016

0120143263 (E.E.O.C. Mar. 3, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Rick G.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120143263

Hearing No. 440-2011-00234X

Agency No. FSIS-2011-00229

DECISION
Complainant filed an appeal from the Agency’s September 11, 2014 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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 Relief
Supervisory Public Health Veterinarian at the Agency’s facility in Lombard, Illinois. On
March 16, 2011, he filed an EEO complaint in which he alleged that his Frontline Supervisor
(S1), the Deputy District Manager, his second-line supervisor (S2), and the District Manager,
his third-line supervisor (S3) discriminated against him on the bases of national origin
(Egyptian) and age (64) by awarding him a performance appraisal rating of fully successful for
FY 2010. He later amended his complaint to include the allegation that these officials
retaliated against him for filing the complaint by giving him a rating of fully successful for FY
2011.
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.

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Supervisory employees like Complainant would be rated on five performance elements:
mission support; supervision; equal opportunity; communications; and individual contributions
to the team. The first three elements were considered critical and were accordingly weighted
with two points each. The remaining noncritical elements were weighted with one point each.
Employees would be rated as “fails to meet,” “meets” or “exceeds” on each of the five
performance elements, and would receive an overall rating of “unacceptable,” “marginal,”
“fully successful,”. “superior,” or “outstanding.” Investigative Report (IR) 16 49-50, 61.

At the time the incidents arose, Complainant was under a pilot “pay for performance” program
under which ratings above fully successful had to be justified by supporting documentation.
Employees had the option of preparing annual “accomplishment reports” and submitting those
reports to their Frontline Supervisors, who would then prepare the initial rating and submit it
into a computerized data base referred to as the “Performance Rating Tool” (PRT). The rating
would then be reviewed by the Supervisor’s Manager, who would either concur and pass it on
or disagree and ask for further information. Once the reviewing official concurred, the rating
would be submitted into the PRT and would be reviewed by a committee called the “sub pool
pay panel,” which consisted of the District Manager, the Deputy District Manager, and all the
Frontline Supervisors. The panel would conduct a final review to ensure that all performance
ratings above fully successful were justified by thorough supporting documents, usually the
accomplishment reports submitted by employees. The panel would then either pass the
appraisals on to the pool pay panel at the Agency’s Washington DC headquarters or would
modify the ratings if the panel members reached a consensus that the ratings as given could not
be justified. Supplemental Investigative Report (IR) 14-15.

According to S1, S2, and S3, S1 had initially given Complainant a rating of “superior” for FY
2010. Although S2 had concurred, members of the sub pool panel had determined that the
performance elements that Complainant was rated as having exceeded were not sufficiently
documented, and consequently, the rating was lowered to “fully successful.” IR 22-23, 51-55,
79-80, 88, 91-95; Agency Hearing Exhibits (AHE) A-5, A-6; Hearing Transcript (HT) 189-
90, 192-93, 196, 212-28, 241, 246-53, 264-65. As to Complainant’s FY 2011 performance
appraisal, S1 testified that the accomplishment report that Complainant had submitted was not
sufficient to justify performances rating on the critical elements above “meets.” SIR 14-16 22-
23, 29-30, 109-14; AHE A-1, A-3, A-4; HT 83, 194, 196, 208, 286.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the AJ held a hearing on December 19, 2012, and issued her decision on August 18,
2014. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions involving performance
appraisals unless there is evidence of a discriminatory motivation on the part of the officials
responsible for preparing or reviewing those appraisals. See Texas Department of
Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on
his disparate treatment claim, Complainant would have to prove, by a preponderance of the
evidence, that either S1, S2, or S3 were motivated by unlawful considerations of his age or
national origin in connection with the FY 2010 appraisal or unlawful retaliation in connection
with the FY 2011 appraisal. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000).

Complainant may do so in a circumstantial-evidence case by showing the reasons articulated by
S1, S2, or S3 for the two appraisals are pretextual, i.e., not the real reason but rather a cover
for discrimination or reprisal. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993)
citing Burdine, 450 U.S. at 253. Evidence of pretext can include discriminatory statements or
past personal treatment attributable to S1, S2, or S3, comparative or statistical data showing
differences in treatment across ethnicity or age-related lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States
Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

In finding in the Agency’s favor, the AJ made a number of critical factual findings. With
regard to the FY 2010 rating, the AJ found that although S1 had initially given Complainant an
overall rating of “superior,” that rating had been subsequently changed to “fully successful”
at the direction of the sub pool pay panel. As to the FY 2011 rating, the AJ found that S1 did
not believe that Complainant’s accomplishment report had documented a level of performance
above “fully successful.” In making these findings, the AJ determined that S1, S2, and S3
were highly credible witnesses and accorded their affidavit and hearing testimony great weight.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit

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it. See EEOC Management Directive 110, Chapter 9, Section VI, Subsection B. (August 5,
2015).

When asked by the investigator why he believed that his age was a motivating factor in the two
performance appraisals, Complainant responded that since he had more seniority and
experience, he felt that he was being treated differently because of his age. He did not give an
answer with respect to national origin. IR 16-18. When asked about reprisal, he replied that
he received the FY 2011 rating shortly after filing the instant complaint. SIR 8-9. He
admitted, however, that he never heard S1, S2, or S3 say anything derogatory about his age,
national origin, or EEO complaint. HT 154-155. Complainant’s entire claim thus appears to
rest upon the notion that the acts complained of, in and of themselves are sufficient to establish
motive. This is simply not true. The laws the Commission enforces cannot prevent an
employer from making decisions that its employees disagree with unless those decisions are
rooted in a statutorily proscribed. motivation. Joni M. v. Department of Homeland Security –
Transportation Security Administration, EEOC Appeal No. 0120142884 (February 1, 2016).
And on this crucial issue, Complainant has not presented any sworn statements from other
witnesses or documents that contradict the explanations provided by S1, S2, or S3, or which
call their veracity into question. We therefore find no basis upon which to disturb the AJ’s
credibility determination regarding the hearing testimony of these officials. Ultimately, we
agree with the AJ that Complainant has not sustained his burden of proof with respect to the
two appraisal ratings.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments

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must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

March 3, 2016
Date