Sid E.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120172090 (E.E.O.C. Oct. 31, 2018)

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

Sid E.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.

Appeal No. 0120172090

Agency No. FSA-2016-00699

DECISION

On May 20, 2017, 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
April 9, 2017, final decision 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Farm Loan
Officer (Loan Specialist), GS-1165-12, at the United States Department of Agriculture (USDA),
Farm Service Agency (FSA), Adams County Office located in Quincy, Illinois. The record
reveals Complainant had been employed with the USDA since 1986 and employed with the FSA
since 1995. Complainant had been stationed at the Quincy, Illinois location since 2007 and
worked as a Loan Specialist since December 2012.

The Agency advertised the position of Supervisory Agricultural District Director under Vacancy
Announcement Number FSA-16-0512-LWF from March 11, 2016, to March 24, 2016.

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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Complainant and four other candidates were included on the Certificate of Eligibles list and were
interviewed by the interview panel. Panel Members consisted of the Administrative Officer from
the Illinois State Office located in Springfield, Illinois (Panel Member 1), the Executive Officer
from the Illinois State Office (Panel Member 2), Administrative Specialist from the Illinois State
Office (Panel Member 3) and the State Executive Director from the Illinois State Office
(Selecting Official). Panel Member 3’s role in the interview process was as an EEO
representative. Panel Member 3 asked questions during the interview; however, she did not take
part in scoring applicants.

The Scoring Matrix for the applicants showed that Complainant was given 52 points from the
Selecting Official, 69 points from Panel Member 1, and 50 points from Panel Member 2, totaling
171 points. The Selectee was given 78 points from the Selecting Official, 78 points from Panel
Member 2, and 76 points from Panel Member 2, totaling 232 points. The other three applicants
received total scores of 192, 215, and 220.

On August 11, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male) and age (over 40) when:

He learned on April 18, 2016, that he was not selected for the GS-1101-13, Supervisory
Agricultural District Director position, advertised under Vacancy Announcement Number
FSA-16-0512-IL-LWF.

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 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 him to discrimination as alleged.

The Agency found Complainant established a prima facie case of discrimination based on sex
and age. The Agency articulated legitimate, nondiscriminatory reasons for its actions. The
Agency stated that the Selectee was better qualified for the position in question. The record
contains a statement from the Selecting Official that Complainant was last on her list of
candidates. She stated Complainant had the worst interview of all five candidates. All of the
panel members stated that Complainant was rated last by each of them. The Agency noted that
the panel attested that the Selectee demonstrated her leadership skills, passion, and enthusiasm
for the job. The interview panel’s scoring matrix showed that Complainant had a combined total
score of 171 points, while the Selectee received 232 points.

The Agency stated that comparing the qualifications of Complainant alongside those of the
Selectee, they found the Selectee’s qualifications were demonstrably superior, as she had more
relevant experience and had been a supervisor for over 10 years. The Agency noted that in
addition to her supervisory experience, she also outperformed all of the other candidates. The
Agency found Complainant failed to rebut its reasons with any evidence that would undermine
the Agency’s explanation for its actions.
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The Agency found no evidence which would support a finding that the selection was tainted by
discriminatory animus or that the reasons articulated by the Agency for its selection were mere
pretext to hide unlawful discrimination.

On appeal, Complainant claims the Agency did not fully investigate his case. Complainant
claims he presented evidence of a discriminatory female preferential hiring pattern within the
Illinois FSA prior to his non-selection. Complainant cites an attachment submitted with his
affidavit which he alleges shows a bias in favor of hiring females for higher level positions.
Complainant also claims his qualifications were superior to those of the Selectee. Complainant
claims the reasons given by the panel members and the Selecting Official were subjective and he
states they were likely dictated by the Selecting Official. Complainant claims the entire selection
process has the appearance of collusion given that all of the panel members (not including the
EEO observer) were subordinates of the Selecting Official. Complainant also notes that
Applicant 1 also commented that it was common knowledge that the Selectee would be selected.

Complainant also cites three specific concerns with the final decision. First, he notes that the
decision stated that he had been employed with the Agency since 2007. He states this is an error
since he was employed with the FSA since 1995 and by the USDA since 1986. Complainant
notes in his affidavit he referred to the fact that he was stationed in the Quincy, Illinois location
since 2007. He argues this oversight casts doubt on the Agency’s accuracy and thoroughness in
reviewing the case.

Second, he notes that Panel Member 3 was not disclosed as the EEO Representative at the time
of the interviews. Complainant states he was advised Panel Member 1 was going to be the EEO
Representative. He states that it appears that at some point, the panel discovered that Panel
Member 3 could not serve as an interview panel member and therefore changed Panel Member
3’s role.

Third, Complainant argues that because Panel Member 3 was the EEO Representative, her
remarks about Complainant’s interview or her perception that the Selectee “had all of the
elements required for the District Director position” are not relevant. Complainant requests all
of Panel Member 3’s comments pertaining to such matters should be stricken from the record.

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”).
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At the outset, we find the record in the present case was fully developed. Regarding
Complainant’s assertion that the Agency did not consider his evidence of a bias towards
selecting females to higher level positions, we note during the investigation Complainant
supplied a statement from the USDA Illinois State FSA Intranet. This document lists “Recent
Hirings and Selections” and contains names, positions (by abbreviation only), location, and
effective date. Complainant claims this list shows that 11 of 35 people hired between January
2015 and November 2016 for grade 11 or higher (or with the potential to be promoted to a grade
11 or higher) were male. However, we note there are more than 35 people listed as hired during
the relevant time. In addition, the list does not clearly indicate the position for which the named
individuals were selected, the grade of any of the identified positions, the sex of the named
individuals and also does not indicate the individuals involved in the selection decision. Thus,
we do not find the document cited to be relevant evidence in support of Complainant’s claim.

In the present case, we find Complainant established a prima facie case of discrimination based
on sex and age. The Agency articulated legitimate, nondiscriminatory reasons for hiring the
Selectee over Complainant. Namely, the panel members individually and collectively
determined that the Selectee was the most qualified. Additionally, all panel members stated that
Complainant did not interview as well as the Selectee and they all individually ranked
Complainant last on their ranking sheet.

Regarding Complainant’s contention that the final decision misstated the time he was employed
with the Agency, we agree that the decision incorrectly stated that Complainant had been
employed with the Agency since 2007. We note the record reveals that Complainant had been
employed with the USDA since 1986, had worked for the FSA since 1995, and had only been
with the Quincy, Illinois Office since 2007. However, we note elsewhere in the final decision,
the Agency referenced Complainant’s contentions regarding his work throughout “his 30-year
tenure with the USDA.” We find the misstatement does not constitute evidence of
discriminatory animus.

We also address Complainant’s contention that Applicant 1 stated that it was common
knowledge that the Selectee would be hired. In his affidavit, Complainant claimed that
Applicant 1 was told by the panel that he would have had a better chance of being selected if he
was other than an over 40, White male. However, we note that in his affidavit Applicant 1
stated that there was no comment from the interview panel or anyone else that Applicant 1 would
have a better chance if he were not a male over 40. Applicant 1 stated that at the end of the
interview, he was asked if he had any more comments and he replied that he wished he had a
“minority card” to play. Applicant 1 stated that “They more or less acknowledged that would
help.” Applicant 1 stated he felt that if he was from some under-represented group that would
give them a basis for hiring someone other than the Selectee. We find in the present case,
Applicant 1’s subjective perception does not constitute evidence of discriminatory intent.

Finally, we find no evidence to support Complainant’s allegation that the selection process was
tainted by collusion since the panel members were all subordinates of the Selecting Official.
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Also, we find no evidence that Panel Member 3’s role as an EEO Representative evidenced
discrimination. We note that in her affidavit, Panel Member 3 stated that she typically took part
in all interviews that took place in that office as EEO Representative. Moreover, regarding
Complainant’s claim of pre-selection, we note that pre-selection per se is not direct evidence of
discrimination. The Commission has consistently held that employment decisions based on
friendship or favoritism are not in violation of Title VII, so long as they are not also premised on
some basis which is unlawful under Title VII, such as sex or age.

In a nonselection case, pretext may be demonstrated in a number of ways, including a showing
that Complainant's qualifications are “plainly” superior to those of the selectee's. Bauer v.
Bailar, 647 F.2d 1037 (10th Cir. 1981); Williams v. Department of Education, EEOC Request
No. 05970561; Jenkins v. Department of the Interior, EEOC Request No. 05940284 (March 3,
1995). While Complainant notes that he had more overall years of experience than the Selectee,
the Commission has previously held that greater years of experience do not necessarily make an
individual more qualified for a particular position. Upon review, we find Complainant failed to
show by a preponderance of evidence that the Agency’s actions were based on discriminatory
animus.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 31, 2018
Date