2020000858•EEOC Appeal 2020000858
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Monroe A.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 2020000858 Agency No. OCFO-2018-00817 DECISION 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 29, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist (ITS), GS-2210-11 at the Agency’s National Finance Center (NFC) facility in New Orleans, Louisiana. On October 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on June 22, 2018, he learned he was not selected for the Information Technology (IT) Specialist, GS-2210-12 position, advertised under Vacancy Announcement Number OCFO-18- 002-DH-AB. According to Complainant, he was interviewed for the position and was ranked second based on the interview panel’s scores. He said that he scored 27 out of 65 points but he felt that the questions were fair and that he did not believe the interview panel was aware of his 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.
2020000858 2 protected activity. He said he was told that the successful applicant declined the position, but his first-level supervisor (S1), who was the Selecting Official (SO), chose another candidate pursuant to Direct Hiring Authority (DHA) rather than offering the position to him. In his affidavit, Complainant asserted that he believed his nonselection was retaliatory but noted that he had not engaged in any EEO activity beyond the instant complaint. He asserted a belief that the reprisal was based on prior grievances he had pursued against the SO regarding her management style. SO in turn averred that she was not aware of Complainant’s grievances or protected EEO activity. With respect to his nonselection, she explained that she had convened a three-member panel to review the application packages of the candidates for the position and to interview the top tier of the applicants, initially about 5 or 6 candidates. However, SO said that Human Resources (HR) notified her that the well-qualified list for the position was about to expire and she may not be able to fill the position. She stated at that point the panel may have interviewed only two candidates. She said HR explained to her the Direct Hire Authority (DHA) option and she realized that would be her best approach to fill the position. SO said she then dissolved the panel and chose Selectee, a former NFC developer, because she possessed critical IT skills, security access management knowledge and a wide-range of skills related to the Agency’s legacy mainframe NFC application and existing Security Software, which were lacking in the unit. SO noted that Complainant, in contrast, had only basic IT skills, with which she was familiar having served as his supervisor since December 2017. Regarding the nonselection, Complainant’s second-level supervisor (S2) asserted that once the interview process was over, the candidate selected for the position withdrew from consideration. Consequently, S1 looked at the remaining candidates and chose Selectee due to her expertise in the legacy systems. S2 observed that the division had lost a lot of knowledge in this area due to retirements. After 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. Specifically, the Agency found that Complainant failed to establish a prima facie case of reprisal since he had not engaged in any protected activity at the time of the nonselection. On appeal, Complainant argues that he participated in two meetings with senior management in which he brought up specific incidents of discrimination; the first meeting in March 2016 and the second meeting in September 2017. Complainant states that after the first meeting the manager in question was removed from his position and after the second meeting the group was told that the manager would be counseled and that changes would be coming soon. He said the first meeting concerned Complainant’s need to take an extended period of leave and request leave donations due to needing neck surgery and S1’s threat regarding his step increase if he took leave and S1’s refusal to sign off on his paperwork for leave donations.
2020000858 3 At the second meeting, Complainant raised concerns about S1 disrespecting and belittling him regarding a training that he was building. He asserted that S1 made him look incompetent in front of numerous costumers. 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”). To make out a claim of retaliation, Complainant must establish three things: first, that he engaged in statutorily protected activity; second, that he was discharged or suffered some other adverse employment decision; and third, that there is a causal connection between the two. Katrina R. v. Dep’t of Commerce, EEOC Appeal No. 2019000399 (Jan. 3, 2020). Here, the Agency found that Complainant failed to demonstrate that he engaged in protected activity that involved opposing a practice made unlawful by Title VII. During the investigation, Complainant stated that the only protected activity in which he engaged was the filing of the instant EEO complaint, which occurred after his nonselection. Hence, we find no error in the Agency’s finding that Complainant failed to establish a prima facie case of reprisal. Regarding Complainant’s arguments on appeal, we find that Complainant has failed to persuasively show he engaged in opposition to discrimination or that any of the Agency responsible officials were aware of such purported opposition. Furthermore, we find that Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons were unworthy of belief or a pretext for discrimination. CONCLUSION The Commission AFFIRMS the Agency’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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.
2020000858 4 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, 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. 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.
2020000858 5 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 November 5, 2020 Date
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