EEOC Appeal 2019005799

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raleigh T.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 2019005799
Agency No. DEPT-2018-00007
DECISION
On September 17, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 26, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Information Technology Specialist, GS-13
at the Agency’s National Information Technology Center (NITC), Office of Chief Financial
Officer (OCFO) in Kansas City, Missouri.
On October 26, 2017, Complainant filed a formal complaint alleging that the Agency discriminated
against him based on race (South Asian), national origin (Indian), color (brown), and age (over 40)
when, on September 5, 2017, he learned he was not selected for the GS-2210-14 Supervisory
Information Technology Specialist position, advertised under Vacancy Announcement Number
AG-OCIO-2017-0130.
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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Based on the evidence developed during the investigation of the complaint, the Agency issued the
instant final decision on August 26, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.
The instant appeal followed.
ANAYLSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted based on a prohibited reason. See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
The evidence developed during the investigation of the complaint establishes that responsible
Agency management articulated legitimate, non-discriminatory reasons for its actions, as more
fully discussed below.
Since April 2011, Complainant was employed as an IT Specialist at the Agency’s NITC in Kansas
City, Missouri. He averred that the Director, Information Services Division, also the selecting
official in the instant appeal, was his second-line supervisor until her retirement.
The Director, Information Services Division (African-American, black, American, over 40) was
the selecting official for the Supervisory Information Technology Specialist position. She
explained that she worked with Human Resources (HR) to develop the vacancy announcement.
The selecting official explained that the vacancy announcement included questions designed to
bring out technical skills.

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She noted that the interview questions contained two technical questions and the remainder of the
questions “were designed to bring out management skills and concepts and their understanding.
This position was a management position, but it was important that the successful candidate have
some technical skills and understanding. Ideally, you want people who have management
experience, so I wanted someone who understands management ideals.”
The selecting official further stated that a named Director reviewed the candidates’ applications
and screened them, and narrowed the applications down to seven candidates, including
Complainant. She noted that there were four internal candidates and three external candidates.
She explained that she participated in two rounds of interviews. Specifically, the selecting official
stated that the first interview panel members were the Network Services Branch Chief and the
Database Management Branch Chief. She noted that the first interview panel narrowed down to
the top three candidates (external candidates). The selecting official stated that there were twenty
questions and each question “had a point value assigned to it. There were two other factors –
articulation and interest. We rated these high, medium and low. The top scores were the selected
candidates for the second interview. Each of us ranked the responses for each candidate and then
totaled each person’s response to obtain the total score.”
The selecting official stated that the second interview panel consisted of the Deputy Operations
and another Director, and they interviewed the top three candidates from the first interview panel.
She noted that the second interview “was similar with fewer questions.” The record reflects that
Complainant was not interviewed for the second round. Following the second round, she chose
the selectee because he was best qualified for the subject position. Specifically, the selecting
official stated that the selectee’s responses to the interview questions were scored higher, the
selectee had prior management and technical experience, and had a better understanding of the
managerial aspects of the job.
The selecting official explained that Complainant did not make the second round because his
interview scores “were lower in some areas…[Complainant’s] scores did not add up to make the
top three.”
The selecting official asserted that “race and color are not factors in my hiring decisions. I follow
the HR policies regarding hiring so that the hiring process is fair and transparent. Being a person
of color, I would not want to be discriminated against, nor would I discriminate against another
and hold them back. It’s always difficult to make decisions that affect people you know, and I am
certain that [Complainant] was disappointed int this decision.” Moreover, the selecting official
stated that Complainant’s race, national origin, color and age were not factors in her decision to
select the selectee.

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The Deputy Operations (Caucasian, white, American, over 40), also Complainant’s third-line
supervisor, was a member of the second interview panel. He noted that the panel used the
interview sheet which was provided by the selecting official and the panel asked the same
questions to each candidate, recorded their responses and provided a score for each question, based
upon the scoring guideline that each panel used to conduct the panels.” The panel recommended
that the selectee for the subject position.
Complainant asserted that he was more qualified than the selectee. The Deputy Operations stated
“I do not believe [Complainant] was more qualified than [selectee]. I have observed
[Complainant] and his knowledge, skills, and abilities over the past 5 years. [Selectee]
demonstrated superior knowledge, skills, and abilities pertinent to the job in question, during his
interview and as is evidenced in his resume.”
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of
the evidence, that these proffered reasons were a pretext for unlawful discrimination. Complainant
argues that he was more qualified than the selectee. However, beyond this bare assertion,
Complainant provides no evidence of these purported Agency motives. Instead, the record reflects
the Agency selection was predicated upon its assessment of the selectee’s strong interview and
overall highest score and the judgment of the involved managers that the selectee outperformed
Complainant. Despite his arguments to the contrary, Complainant has not shown that the alleged
disparities in qualifications between him and the selectee are “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over
[him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see
also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006).
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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.

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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. 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. 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:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 16, 2020
Date