EEOC Appeal 2019006004

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Devon H.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 2019006004
Hearing No. 420-2017-00260X
Agency No. APHIS-2016-00970
DECISION
On September 29, 2019, 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
September 5, 2019, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for the Agency’s Animal
and Plant Health Inspection Services (APHIS) Veterinary Services as a GS-0701-12 Veterinary
Medical Officer (VMO) based in Mt. Vernon, Illinois. Complainant was born in May 1964, and
he was 52 years old at the time of events giving rise to the instant complaint.
In the spring of 2016, Complainant timely applied through USA Jobs for a GS-0701-11/12 VMO
position located in Riverton, Wyoming advertised under vacancy announcement number 24VS-
APHIS-DH-2016-0775.
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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The position was announced as part of the Veterinary Medical Officer Career Program
(VMOCP), a career development program that was designed to develop candidates for leadership
positions in the Agency. The vacancy announcement stated that applicants needed to have a
Doctor of Veterinary Medicine (DVM) or equivalent degree or needed to show that they would
graduate with a DVM degree within 70 days of the closing of the announcement. A master’s
degree in a related field could be substituted for experience for GS-12 grade. Although
candidates could indicate interest in being considered for multiple locations through the vacancy
announcement, Complainant indicated that he was only interested in Riverton, Wyoming out of
the 17 locations nationwide.
The Director of the VS Management Support Division (VS1) coordinated the selection process
for the VMOCP. On May 4, 2016, VS1 sent an email to the 17 local recommending officials.
VS1 directed the local recommending officials to send the names and resumes of their top two
candidates to a point of contact (VS2), and she stated that the VMOCP Review Board would
decide which candidate to select for each location.
The local recommending official for the Wyoming position was the APHIS Veterinary Services
Assistant District Director for Wyoming (W1). On May 19, 2016, W1 interviewed four
candidates, including Complainant, for the position by telephone. W1 initially decided to
recommend Complainant and another candidate (C1, born in 1954) as his first and second
choices, respectively. In a May 12, 2016, email to his supervisor, the APHIS Veterinary Services
District 5 Director (W2), W1 stated that C1’s supervisor said that she was “intense” and might
not be willing to relocate to Wyoming. After discussing his options with W2, W1 stated that he
decided to recommend Complainant and a different candidate (C2, born in 1974) as his first and
second choices. On May 23, 2016, W1 emailed Complainant and stated that he was his first
choice for the Wyoming vacancy. The email noted that the VMOCP Review Board would make
the final selection. On June 2, 2016, W1 emailed VS2 with his top choices, Complainant and C2.
On June 7 and 14, 2016, the VMOCP Review Board met to discuss and select candidates. The
four members of the VMOCP Review Board were the APHIS Veterinary Services Associate
Deputy Administrator for Program Support Services (RB1), the APHIS Veterinary Services
Associate Deputy Administrator for Surveillance, Preparedness and Response Services (RB2),
the Executive Director for APHIS Veterinary Services National Import Export Services (RB3),
and the APHIS Veterinary Services Scientific Advisor (RB4). The four members agreed that,
based on the application packages, C2 was more qualified than Complainant for the VMOCP
position in Wyoming because of her demonstrated interest in leadership and career development.
RB1 stated that Complainant had good field experience but that his application did not
demonstrate an interest in leadership or career development.
According to the record, C2 had a bachelor of science degree in biology, a master of science
degree in wildlife and fisheries science, and she would have a DVM degree within 70 days of the
vacancy announcement closing date. In veterinary school, C2 held leadership positions in the
Pathology Club, the student chapter of the American Society of Laboratory Animal Practitioners,
and the Aquaculture and Aquatic Medicine Club.

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C2 was a member of two graduate school honors societies. Complainant had authored or co-
authored four articles that were published in scholarly journals, and she had made or assisted
with making three presentations at professional meetings.
According to his resume, Complainant’s only degree was a DVM, he did not hold any leadership
positions in professional organizations, he was not a member of any honors society, he had not
authored any articles in scholarly journals, and, although he generally referenced presenting to
veterinary students and others involved in industry, Complainant did not include any specific
professional presentations in his resume. In his resume, Complainant stated, “I won the bull
riding at Cheyenne Frontier Days in 1986, and have been trying to move to Wyoming ever since.
I’m applying to this position because I want to finish my career, and then retire, in the state of
Wyoming.” Report of Investigation (ROI) at 506. RB4 stated that Complainant’s statement that
he planned to end his career in Wyoming showed that he would not likely be interested in
relocating for leadership positions, and he noted that leadership development was important for
the VMOCP.
Complainant alleged that he was more qualified than C2 because he had been successfully
performing in an APHIS VMO position while C2 was still in veterinary school and because he
had 20 years of post-veterinary school experience. Complainant averred that he demonstrated
leadership during his career as a veterinarian. According to Complainant, his age was a factor in
his nonselection because APHIS management wanted to replace retiring leaders with younger
candidates who were far away from retirement age.
On June 21, 2016, VS2 notified W1 and the other local recommending officials of the VMOCP
Review Board’s selections, including the selection of C2 for Wyoming. According to RB4, the
Wyoming vacancy was the only instance where the VMOCP Review Board selected the local
recommending official’s second choice. In a June 24, 2016, email to the APHIS Veterinary
Services Deputy Administrator, RB2 stated that the Review Board did not select W1’s first
choice because Complainant had stated that he applied for the job because he wanted to retire in
Wyoming, which did not show the commitment to leadership development that was desired for
the VMOCP. RB2’s email noted that Complainant had graduated from veterinary school 20
years ago, whereas C2 had graduated from veterinary school in May 2016. On June 24, 2016,
W1 informed Complainant that, although he had been his first choice, someone else had been
selected for the Wyoming vacancy. On July 12, 2016, Human Resources formally offered C2 the
position, and the effective date of her appointment was July 24, 2016. At the time of her
appointment, C2 was 42 years old. On August 3, 2016, Complainant received a notification from
USA Jobs that he had not been selected for the position.
Complainant initiated contact with an EEO Counselor on August 26, 2016. On November 16,
2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the basis of age (52 years old) when, on August 3, 2016, he learned that he had not been
selected for the GS-0701-11/12 VMO position in Riverton, Wyoming advertised under vacancy
announcement number 24VS-APHIS-DH-2016-0775.

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At the conclusion of 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 AJ. 	Complainant
requested a hearing.
On July 11, 2017, the Agency filed a motion to dismiss Complainant’s EEO complaint for
untimely EEO Counselor contact. 	At the July 24, 2017, Initial Scheduling Conference, the AJ
ruled that, based on the facts of the case, she could not rule on the motion to dismiss without
relying on evidence and testimony. The AJ struck the motion to dismiss as moot, ordered the
parties to engage in discovery, and set a briefing schedule for dispositive motions.
On October 27, 2017, the Agency filed a motion for a decision without a hearing. Complainant
responded to the Agency’s motion on November 26, 2017, and the Agency replied on December
12, 2017.
On November 6, 2017, the Agency filed another motion to dismiss. Complainant filed a response
to the motion to dismiss on November 12, 2017, and the Agency filed a reply brief on November
17, 2017. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s
motion to dismiss on September 5, 2019. The Agency issued a final order on September 5, 2019,
fully implementing the AJ’s decision dismissing Complainant’s EEO complaint. The instant
appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in dismissing his complaint for untimely
EEO Counselor contact. Complainant notes that he was not notified that he had not been selected
until August 3, 2016, and he adds that he did not suspect discrimination until later in August
2016 when he learned details about C2, the selectee. According to Complainant, RB4’s reference
to his desire to retire in Wyoming and RB2’s comparison of his graduation date to C2’s
graduation date are conclusive evidence that he was subjected to discrimination based on age.
Complainant requests that the Commission reverse the AJ’s decision granting the Agency’s
motion to dismiss.
In response to Complainant’s appeal, the Agency contends that its final order should be affirmed
because Complainant did not contact an EEO Counselor within 45 days of learning that he had
not been selected.
ANALYSIS AND FINDINGS
Dismissal for Untimely EEO Counselor Contact
The AJ dismissed this complaint for untimely EEO Counselor contact. EEOC Regulation 29
C.F.R. §1614.107(a)(2) states, in relevant part that the Agency shall dismiss a complaint or a
portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105.

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EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of
the action. 	The Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the 45-day limitation period is triggered. 	See
Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). 	Thus, the time
limitation is not triggered until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
Here, the AJ found that the complaint should be dismissed because Complainant did not contact
an EEO Counselor until more than 45 days after he learned that he had not been selected for the
position via email on June 24, 2016. However, the effective date of C2’s appointment was July
24, 2016, and Complainant was not formally notified that he had not been selected until August
3, 2016. Complainant initiated contact with an EEO Counselor on August 26, 2016, which was
within 45 days of both of those dates. As a result, dismissal of the complaint for untimely EEO
Counselor contact was not appropriate.
Decision without a Hearing
We find that, instead of dismissing the complaint, the AJ should have granted the Agency’s
motion for a decision without a hearing. See Fitch v. Social Sec. Admin., EEOC Appeal No.
0120083958 (June 14, 2012) (where AJ erroneously dismissed complaint for failure to state a
claim, Commission found that summary judgment was appropriate and that complainant did not
establish discrimination). The Commission’s regulations allow an AJ to issue a decision without
a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g).
EEOC’s decision without a hearing regulation follows the summary judgment procedure from
federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate
where a judge determines no genuine issue of material fact exists under the legal and evidentiary
standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary
judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed
to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the
outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
argued that W2’s role in W1’s decision to replace C1 with C2 as his second choice was unclear.

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However, this factual dispute is not material in determining whether selecting C2 over
Complainant was based on age. Complainant’s response to the Agency’s motion for summary
judgment also contests that C2’s resume demonstrated more of a commitment to leadership and
professional development than his resume did. However, we find that, even drawing all
justifiable inferences in Complainant’s favor for the purposes of summary judgment, no
reasonable factfinder could find that Complainant’s resume demonstrated the same level of
commitment 	or 	more 	of 	a 	commitment 	to 	professional 	development 	than 	C2’s 	resume.
Accordingly, we will consider the merits of Complainant’s complaint.
Disparate Treatment
Complainant alleged that he was subjected to discrimination based on age when he was not
selected for the Wyoming VMOCP position. To prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima
facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however,
since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. 	See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 	To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995). In a selection case, a complainant can attempt to prove pretext by
showing that his qualifications are “plainly superior” to those of the selectee. 	See Patterson v.
Dep’t of the Treasury, EEOC Request No. 05950156 (May 9, 1996).
The Agency’s legitimate, nondiscriminatory reason for selecting C2 over Complainant was that
she was more qualified for the VMOCP because her application demonstrated a commitment to
career development and leadership. As evidence of pretext, Complainant notes that both RB2
and RB4 noted his desire to retire in Wyoming as a reason for not selecting Complainant, and he
also notes that RB2 highlighted that C2 was a recent veterinary school graduate, whereas
Complainant had graduated from veterinary school 20 years earlier. However, preponderant
evidence 	in 	the 	record 	establishes 	that 	RB2 	and 	RB4 	discussed 	this 	statement 	from
Complainant’s application and RB2 contrasted Complainant and C2’s post-veterinary school
experience in the context of Complainant’s lack of demonstrated interest in leadership and career
development and were not discussing the number of years Complainant would likely work
before retiring. As further evidence of pretext, Complainant argues that his qualifications were
superior to C2’s qualifications. However, as RB1 noted, despite Complainant’s extensive field
work, demonstrated commitment to leadership and career development was extremely important
for the VMOCP.

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Regarding personnel actions by an agency, we have consistently recognized that an agency has
broad discretion to set policies and carry out personnel decisions, and should not be second-
guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See
Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan.
16, 1997). In the absence of evidence of age-based animus, the Agency’s decision to emphasize
leadership and career development over field experience is not evidence of pretext. We find that
Complainant has not established that the Agency’s legitimate, nondiscriminatory reason for not
selecting him for the VMOCP vacancy in Wyoming were a pretext for discrimination based on
age.
CONCLUSION
We AFFIRM the Agency’s final order, finding that the issuance of a decision without a hearing
is appropriate and that the preponderance of the evidence in the record does not establish that
Complainant was subjected to discrimination based on age.
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.

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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. 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 23, 2020
Date