EEOC Appeal 2024005092

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Kiara R.,1
Complainant,
v.
Brooke Rollins,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 2024005092
Hearing No. 570-2024-00689X
Agency No. OCFO-2023-00557
DECISION
On September 17, 2024, 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 August 22, 2024, final order 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. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a Systems
Accountant at the Agency’s Office of Chief Financial Officer in New Orleans,
Louisiana.
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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On November 24, 2023, Complainant filed a formal complaint alleging that the
Agency discriminated against her on the bases of race (African-American) and color
(Black) when: she was not selected for the position of Supervisory Program Analyst
(Customer 	Support 	Branch 	Chief) 	position, 	advertised 	under 	Vacancy
Announcement Number: 11945114-23-GT, located in New Orleans, Louisiana.
Complainant applied for the position through the USAJobs website and was
interviewed, along with all the other applicants. The resumes of all the applicants
were rated and ranked by three panel members prior to the interviews. See Report
of Investigation (ROI) at 314-15. The panel members gave Complainant’s resume
a score of 25; 25, and 13, respectively. See Agency Supplement to the Record at 16-
17. 	The Selectee received scores of 23, 24, and 23, respectively. 	See Agency
Supplement to the Record at 16-17. 	The Branch Chief, who was one of the panel
members, was the one who gave Complainant the low score among the three panel
members from the resume review. Complainant asserted that the Branch Chief gave
her a score of 2 rather than a 5 on Leadership, even though she has extensive
supervisory experience, and that the Branch Chief also gave her a rating of 2 rather
than a 5 on Administration Management, although she has more than five years of
experience in planning, coordinating, and proposing process improvements. 	See
ROI at 256. 	The Branch Chief stated that she gave Complainant a rating of 2 on
Leadership because Complainant only had four months of supervisory experience
with the Agency and the Branch Chief acknowledged that she did not take into
consideration Complainant’s private sector experience. See ROI at 299. The Branch
Chief explained that she did not consider Complainant’s private sector experience
because she did not know what the job duties or responsibilities of Complainant’s
job title entailed. See ROI at 300. The Branch Chief acknowledged that she made
a mistake in giving Complainant a rating of 2 for Administration Management when
she should have given Complainant a 3, explaining that she misread the scale. See
ROI at 300. The Branch Chief further admitted that she made a mistake in giving
Complainant a 1 in Experience with Automated Systems, stating that she should
have given Complainant a 5. See ROI at 302-303. She stated, however, that even if
she had not made the error, Complainant would still have received a lower score on
her resume than the Selectee. See ROI at 304.
During the interview process, the panel members gave Complainant scores of 45,
43, and 44, respectively. See Agency Supplement to the Record at 19. The Selectee
received interview scores of 42, 42, and 48, respectively.

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Complainant’s aggregate overall score was a 197, which ranked her as 7 th out of the
candidates, while the Selectee’s aggregate overall score was a 202, which ranked her
as 3 rd out of all the candidates. See Agency Supplement to the Record at 16-17; 19.
The panel members only provided the Selecting Official with the scores of the
candidates but did not make any recommendation as to who should be selected. The
Selecting Official stated that he reviewed the applications, interview scores, and
application scores and made his decision based on the best three scores. See ROI at
314. 	He acknowledged that he noticed that the Branch Chief gave Complainant a
lower score on her resume than the other two panel members so he reviewed
Complainant’s resume again and determined that, in his opinion, Complainant’s
score based on her resume should have been higher but noted that Complainant
would still not have been the highest-scored candidate. See ROI at 317. He asserted
that he selected the Selectee because she stood out the most with experience in
dealing with customers and staff, knowing the data and resolutions for customer
assistance, responding to issues, dealing with management and ability to adapt to
short notice changes and requests for financial assistance. See ROI at 323.
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 EEOC Administrative Judge (AJ). 	Complainant timely requested a hearing
before an AJ.
The 	Agency 	submitted 	a 	motion 	for 	a 	decision 	without 	a 	hearing, 	which
Complainant opposed. The AJ granted the Agency’s motion and issued a decision
by summary judgment in favor of the Agency, finding no discrimination.
The Agency subsequently issued a final order fully implementing the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. The instant appeal followed.
As this is an appeal from a decision issued without a hearing, 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 (EEO
MD-110), at Chap. 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

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Commission’s own assessment of the record and its interpretation of the law”); see
also EEO MD-110, at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an
administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).
The Commission’s regulations allow an AJ to grant summary judgment when they
find that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue
of fact is “genuine” if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is “material”
if it has the potential to affect the outcome of the case. Id. When considering
summary judgment, facts and inferences must be viewed in the light most favorable
to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
To successfully oppose a decision by summary judgment, a complainant must
identify, with specificity, facts in dispute either within the record or by producing
further supporting evidence and must further establish that such facts are material
under applicable law. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see
also EEO MD-110, at Chap. 7, § III.E. Such a dispute would indicate that a hearing
is necessary to produce evidence to support a finding that the Agency was motivated
by discriminatory animus. Here, however, Complainant has failed to establish such
a dispute. Contrary to Complainant’s argument on appeal, the fact that Complainant
disagrees with the management officials’ statements is not enough to establish a
credibility dispute or a dispute of material fact. 	The minor inconsistencies that
Complainant cites are not material facts because they are irrelevant to the ultimate
issue of whether Complainant established discriminatory animus, of which there is
simply no evidence. It is well settled that mere assertions of a factual dispute without
more are not sufficient to defeat a motion for summary judgment. See Darrell C. v.
U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v.
U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013).
Upon our review of the record, we find that the AJ correctly determined that
Complainant failed to establish a dispute of material fact and properly granted
summary judgment.
We further find that the record does not support Complainant’s assertion that she
was 	subjected 	to 	disparate 	treatment. 	The 	Agency 	articulated 	a 	legitimate,
nondiscriminatory reason for the non-selection and Complainant did not establish
that the Agency’s reason was a pretext for discrimination.

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While Complainant argues that the Branch Chief’s admission that she made mistakes
in how she scored Complainant’s resume is proof of discrimination, Complainant’s
argument is without merit. 	The Commission has repeatedly stated that a mistake
made by an agency is not evidence of pretext unless there is evidence that the mistake
was based on a complainant’s protected classes. 	See Marvin W. v. Dep’t of
Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018) (pretext inquiry is
not concerned with bad judgment, impeccability, dislike, or a mistake); see also
Carroll 	v. 	Dep’t 	of 	Justice, 	EEOC 	Appeal 	No. 	01A20985 	(Jan. 	21, 	2003)
(discrimination not found where there was inadvertent failure to consider prior work
experience). 	Moreover, the evidence does not establish that the Branch Chief’s
mistake changed the outcome as the Selecting Official noted that even if the Branch
Chief had given Complainant a higher score, Complainant would still not have been
the highest-ranked candidate, and he stated that the Selectee was more qualified than
Complainant.
While Complainant clearly disagrees with the Selecting Official’s assessment,
Complainant cannot establish pretext based on her subjective assessment of her own
qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070
(March 18, 2016). In addition, the question is not whether the agency made the best,
or even a sound, business decision. It is whether the real reason is discrimination.
Complainant offered no evidence to support her assertions beyond her own
subjective beliefs; however, the Commission has repeatedly stated that mere
assertions that an agency’s explanation is a pretext for intentional discrimination is
insufficient because subjective belief, however genuine, does not constitute evidence
of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8,
2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11,
2003).
Having thoroughly reviewed the record, and construing any inferences raised by the
undisputed facts in favor of Complainant, we find that a reasonable fact-finder could
not find in Complainant’s favor. Upon careful review of the AJ’s decision and the
evidence of record, as well as the parties’ arguments on appeal, we conclude that the
AJ correctly determined that the preponderance of the evidence did not establish that
Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
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 Sector
(OFS) 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 their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their request via the EEOC
Public Portal, in which case no proof of service is required.

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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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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 their
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.

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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:
T. Gimbrere 	Gul Chaudhry’s signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 14, 2026
Date