EEOC Appeal 2019005858

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bert G.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 2019005858
Agency No. RD-2018-00862
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 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 was an applicant and former Agency employee who
applied for several Loan Specialists positions located in in various cities in Mississippi. At the
time Complainant applied for the positions at issue, Complainant had served five years, from
1989-1994, as an Assistant County Supervisor at the Agency’s Farmers’ Home Administration
(FHA) in Jackson, Mississippi. Complainant resigned from that position in May 1994.
On September 19, 2018, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against him based on race (Caucasian), sex (male), color (white), and age (YOB:
1964) when:
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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1. on June 15, 2018, July 13, 2018, and August 2, 2018, Complainant learned that he
was not selected for the following positions:
a. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15087;
b. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15146;
c. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15147;
d. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15148;
e. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15149;
f. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15240;
g. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
NumberSTHMS-2018-15311;
h. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15166; and
i. GS-1165-9/11, Loan Specialist, advertised under Vacancy Announcement
Number STHMS-2018-15197
After the investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative (AJ) or a final decision within thirty days of receipt of the correspondence.
Complainant requested a final decision.
On July 24, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.
The instant appeal followed. On appeal, Complainant argues that he was qualified for the
positions at issue and he submits several documents in support of this assertion.
In response, the Agency filed an appeal brief in opposition to Complainant’s appeal and the
Agency requests that the Commission strike Complainant’s submissions dated December 18,
2019, and January 30, 2020 because they are untimely submitted.

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ANALYSIS AND FINDINGS
Preliminary Matters – Submissions on Appeal
As an initial matter, we knowledge that on September 19, 2019, the Commission granted
Complainant an extension to file any comments or brief in support of his appeal by September
26, 2019. Therefore, we will only consider documents submitted by Complainant on or before
September 26, 2019 as part of the record.
Merits of Subject Claims
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 of discrimination by presenting facts that, 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 on the basis of 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).
Our review of the record reflects that the Agency articulated legitimate, non-discriminatory
reasons for not selecting Complainant for the vacancy positions at issue.
Claims 1a through 1c, 1e through 1g: Not Referred – Out of Area of Consideration (“AOC”)
Complainant testified that these positions were open to “Current or Former Employees
Competitive Service.” Complainant explained that he was qualified for these positions because
he was a former employee with competitive status and had reinstatement eligible status.

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Complainant further explained that he had prior experience with loan processing and economic
development and he has a bachelor of science degree in agricultural economics, a master’s
degree in business administration, and he had completed course work for another graduate
degree. However, Complainant indicated that he was never referred to the selection official for
these positions because he was notified that he was “Ineligible AOC.”
The Selection Official stated that all applicants are vetted through Human Resources to
determine whether the applicants qualified for a position. The Selection Official explained that
he received a list of eligible applicants that Human Resources deemed qualified. However, the
Selection Official testified that Complainant’s name did not appear on the list of eligible
candidates for the positions at issue. Consequently, the Selection Official stated that he never
saw Complainant’s application.
The Human Resources Specialist (“HR Specialist”) explained that an applicant’s eligibility is
based on the area of consideration (AOC) and an applicant is determined ineligible if the AOC is
not met. The HR Specialist further explained that an applicant must submit proof of his/her
AOC by submitting a personnel action or recent SF-50 issued within one year to eighteen
months. Regarding the position vacancies at issue, the HR Specialist stated that the AOC was
only for current Agency employees. The HR Specialist stated that AOC eligibility was
determined by the following three criteria: (1) a current, (2) competitive service, (3) permanent,
USDA Rural Development employee. Consequently, the HR Specialist stated that Complainant
did not qualify because the SF-50 he uploaded into the USAJOBs system indicated that he
resigned from the USDA, FHA in 1994. The HR Specialist also noted that other applicants
failed to meet the AOC criteria. For these reasons, Complainant’s application was not forwarded
to the Selection Official for review.
The HR Specialist acknowledged that Complainant did have reinstatement eligibility status
because he had completed at least three years of employment in a competitive permanent status.
However, the HR Specialist explained that Complainant did not meet the AOC requirement for
the positions at issue. The HR Specialist noted that the positions at issue were not announced as
Status Employees which would have made former federal employees with competitive status,
such as Complainant, eligible to apply.
The HR Specialist further acknowledged that Complainant’s date of birth was included on his
SF-50 form. She stated, however, that she did not recall seeing Complainant’s date of birth. The
HR Specialist further clarified that Complainant did not complete the optional Core Eligibility
Questions on his applications which ask applicants to disclose their race, ethnicity, sex, and
disability. However, Complainant did answer a question on his applications regarding his sex
and identified himself as male.
Copies of the vacancy announcements indicate that the announcements contained inconsistent
information. The first page of the vacancy announcements state, “This Job is open to Federal
employees – Competitive Service” and “Career transition (CTAP, ICTAP, RPL).”

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The first page also contains language that the positions are open to “current or former
competitive service federal employees.” However, the second page of the vacancy
announcements, under the “Who May Apply” section, states “This job is open to Current,
permanent USDA Rural Development (RD) employees with competitive status and USDA
CTAP/RPL eligible in the local commuting area” (emphasis in original). Despite these
discrepancies, we note that the HR Specialist’s testimony is consistent that all the position
vacancies at issue were only for USDA Rural Development employees.
A copy of Complainant’s SF-50 indicates that Complainant resigned from the Agency in 1994.
Claim 1d: No Application
The HR Specialist testified that there was no record that Complainant applied for this position.
Claims 1h and 1i: Cancelled Vacancies
Complainant testified that he was not selected for the positions at issue because the vacancy
announcements were cancelled.
The Selection Official stated that he cancelled both vacancy announcements because he was not
comfortable with the locations of the positions. Specifically, the Selection Official explained
that he needed to conduct a statewide analysis on workload and staffing to prevent overstaffing
offices. The Selection Official reasoned that the statewide analysis would help him ensure that
additional staff were hired in locations where the workload justified an increase in staffing.
The HR Specialist also confirmed that the vacancy accountments were cancelled. However, the
HR Specialist explained that the vacancy announcement number STHMS-2018-15166 was
cancelled to change the position to a lower grade. For vacancy announcement number STHMS-
2018-1519715197, the HR Specialist stated that this announcement was cancelled to specify that
the position was located in Hattiesburg, Mississippi and the grade level was also lowered.
After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, sex, color, and age.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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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.
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.

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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
June 2, 2020
Date