Terrell G.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

May 13, 2016

0120140544 (E.E.O.C. May. 13, 2016)

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

Terrell G.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.

Appeal No. 0120140544

Hearing No. 470-2011-00101X

Agency No. RD-2010-00364

DECISION

The Commission accepts Complainant’s appeal from the Agency’s October 28, 2013 final
order concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of 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
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s Area Office in London, Kentucky. Sometime in 2009,
Complainant applied for an Area Director position. In October 2009, Complainant was
notified by the Acting Kentucky State Director that he had been selected for the Area Director
position. Complainant had received the highest score and rating of the eligible candidates. On
November 29, 2009, the Agency appointed a new permanent Kentucky State Director. On
January 25, 2010, the State Director advised Complainant that his appointment to the Area
Director position had been cancelled due to a pending reorganization.

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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In March 2010, the Agency’s reorganization plan was submitted to the National Office, but the
operation of the London, Kentucky Area Office was not affected. In April 2010, the Agency
re-announced the position, and Complainant re-applied. The State Director submitted his
choice of the candidates to the selecting committee for their concurrence. The selection
committee approved the State Director’s choice and the Selectee was selected. Complainant
was not selected for the position.

On April 29, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of age (64) when on February 11, 2010, he learned that
he was not selected for the position of Area Director, GS-0301-13, advertised under Vacancy
Announcement Numbers KY-09-06 and KY-DEU-09-01.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on August 30, 2011, and subsequently issued a
decision on March 28, 2012.

In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, Agency officials testified that Complainant was not
selected because his experience was 20 years out of date and did not correspond with the
requirements of the position. Further, the State Director preferred the Selectee to Complainant
because the Selectee had more recent and relevant experience and Complainant did not have
current familiarity with the programs he would have been charged with administering. The
State Director testified that the Selectee had experience with all the different programs from
rural utilities services, rural business services, rural housing, and multi-family housing. The
State Director testified that he did not believe it was justified to select Complainant who had
been away from the Agency for 23 years and had experience not directly related to many of the
programs associated with the position. Selection committee members corroborated the State
Director’s testimony and added that the complexion of the programs had changed significantly
since Complainant had been with the Agency and the Agency could not afford to hire a senior
manager with a learning curve before becoming an effective manager.

Next, the AJ concluded that Complainant failed to show that the Agency’s reasons for its
actions were pretextual. The AJ noted that the Agency’s reason for cancelling the initial
announcement and the entire selection process were irregular; however, Complainant’s
testimony brought more clarity as to the real reasons he was not selected. First, Complainant
believed that his education and years of experience were plainly superior to the selectee. The
2 The Commission notes that Complainant additionally alleged discrimination on the basis of
political affiliation. The Agency issued a separate final Agency decision on Complainant’s
claim that his non-selection was motivated by his political affiliation. Political affiliation is not
a basis of discrimination within the jurisdiction of the Commission, and therefore it is not
addressed in this decision.

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AJ found that the Agency believed that the Selectee’s more recent and relevant experience
were more important. Next, Complainant points to a handwritten note from the Agency’s
EEO Specialist made during a meeting about the office’s impending reorganization stating
“Age Disc. = 40 years” as evidence of the Agency’s discriminatory animus. The AJ found no
evidence that that the EEO Specialist’s note had anything to do with discriminatory intent.

The AJ added that Complainant testified that he believed that the real reason the State Director
did not select him was due to partisan political considerations, i.e., the fact that he is a
Republican and the State Director is a Democrat. Complainant and the State Director had
worked together previously, and the State Director had once reported to him. The AJ
determined that, in view of Complainant’s testimony, it was quite likely that the State Director
simply did not like Complainant and did not want to hire someone he personally did not care
for if he did not have to do so. The AJ noted that the State Director also likely did not like the
idea of hiring his own former boss. Finally, Complainant testified that he had heard that the
State Director wanted to hire “his guy,” meaning the selectee. The AJ noted that preselection
of a favored candidate was not a violation of the ADEA.

Thus, the AJ concluded that Complainant failed to show that the Agency’s reasons for not
selecting Complainant were pretext for unlawful age discrimination. As a result, the AJ found
that Complainant had not been subjected to discrimination as alleged. The Agency
subsequently issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ’s decision was inaccurate and unacceptable.
Complainant contends that he was the most qualified candidate for the position and that age
discrimination was the plausible motivating factor in his non-selection. Accordingly,
Complainant requests that the Commission reverse the final order.

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. Nat'l Labor Relations Bd., 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.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he 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). Once Complainant
has established a prima facie case, the burden of production then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons for
its actions are pretext for discrimination. Id. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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, 519
(1993).

Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of age discrimination,
substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows that while
Complainant was initially selected for the position, Agency officials and the new State Director
received a memorandum from the National Office about potentially reorganizing the Kentucky
State Office. ROI, Ex. 8, at 2. As a result, the Agency cancelled several vacancy
announcements, including the one under which Complainant had been selected. Id.
Ultimately, the State Director submitted a reorganization plan that made no changes to the
Area Office, and the Agency re-advertised the position. Hr’g Tr., Vol. 2, at 10-12, 70-71.
After re-advertising the position, the State Director selected the Selectee based on the
Selectee’s more recent experience in the relevant program areas, including rural utilities
services, rural business services, rural housing, and multi-family housing. Id. at 28, 31. By
contrast, Complainant had been away from the Agency for approximately 20 years, and his
recent experience was indirect to the relevant program areas and responsibilities. Id. at 29-30.
The State Director testified that he was impressed with the Selectee’s demonstrated knowledge,
especially his diverse background experience that a lot of candidates would not have had. Id.
at 36. As a result, the State Director selected the Selectee believing that he was the prime
candidate for the position.

Complainant contends that the Agency’s reasons for not selecting him are pretext for age
discrimination. Additionally, Complainant claims that he was the most qualified person in

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Kentucky for the position. Further, Complainant argues that the State Director wanted to hire
“his guy” and did not want to have him, as a former state director, working under him.

Although Complainant disagrees with the testimony provided by Agency officials at the
hearing, the Commission finds that there is substantial evidence in the record to support the
AJ's finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination. While the Commission agrees that circumstances of Complainant’s non-
selection were irregular, the Commission has long held that an Agency has broad discretion to
set policies and carry out personnel decisions, and should not be second-guessed by the
reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259;
Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997).

Likewise, the Commission finds that Complainant failed to show that his qualifications for the
position were plainly superior to those of the Selectee. In this case, substantial record evidence
reveals that the Selectee had attributes that justified his selection, and the selection officials
involved all testified that they believed that the Selectee was better equipped to meet the
Agency's needs. In addition, even if preselection occurred as Complainant appears to allege,
Complainant has not shown that any such preselection was motivated by discriminatory
animus. Goostree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).

The Commission concludes that the record and facts gleaned at the hearing fail to disclose any
evidence purporting to show the Agency's actions were pretext for discriminatory animus.
Finally, to the extent that Complainant also argues that the Agency had a mixed-motive in not
selecting him, the Commission finds that Complainant cannot establish a “mixed-motive,”
because the Commission does not find that discrimination played any role in this case.
Accordingly, the Commission finds that Complainant did not show that he was discriminated
against as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests 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 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.

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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

May 13, 2016
Date