EEOC Appeal 2020000858

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.

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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.

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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.

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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.

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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