Art B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 9, 2020

2020004727 (E.E.O.C. Nov. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Art B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004727 Hearing No. 520-2018-00259X Agency No. 200H-0561-2017900162 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 5, 2020 final order 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 had worked as a Police Officer, GS-6, at the Agency’s Lyons VA Medical Center in Lyons, New Jersey, for nearly 12 years. On October 26, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on national origin (Ecuadorian-American) and age (54) when, on August 3, 2017, Complainant learned that he was not selected for the Detective position for which he had applied under Job Announcement No. BH-17-MSD-1964597-BU. 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. 2020004727 2 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. We note that three other complainants from the same Agency also filed formal complaints (Agency Nos. 200H-0561-2017105067; 200H-0561-2017900278; and 200H-0561- 201705062) and requested hearings regarding the same matter in the instant complaint. The AJ consolidated the four complaints for processing, but nevertheless assigned separate hearing numbers for each of the complaints (Hearing Nos. 520-2018-00232X, 520-2018-00339X and 520-2018-00316X respectively). The Agency file a motion for summary judgment for all four complaints and complainants, collectively represented by the same legal counsel, filed an opposition. On July 31, 2020, the AJ issued a decision by summary judgment in favor of the Agency. On August 5, 2020, the Agency issued a separate final order for the instant formal complaint adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that there are material issues in dispute and requests that the Commission reverse the Agency’s final order. Specifically, Complainant asserts that he was more qualified than the Selectee (Puerto Rican, age 32). Additionally, Complainant argues that the AJ did not consider the Commission’s prior decision where it found that the Agency discriminated against another complainant who applied but was not selected for the same vacancy at issue in the instant complaint. See Lenard H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001566 (May 12, 2020). ANALYSIS AND FINDINGS 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. 2020004727 3 On appeal, Complainant, through counsel, submits a statement arguing that there are material issues in dispute. However, to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Complainant has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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, a 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 indicates that the AJ correctly determined that the Agency provided legitimate, non-discriminatory reasons for not selecting Complainant for the position at issue. The Selecting Official (“SO”) (American, age 53) explained that eight candidates applied for the position. All eight candidates, including Complainant, were interviewed face-to-face by a three- member panel (“P1,” “P2,” and “P3”), comprised of the Fire Chief from the Lyons VAMC, the Police Chief from the Montrose, NY VAMC, and the Deputy Chief from the Bronx VAMC. The SO further explained that the interview panel asked the same performance-based questions for all candidates and the candidates were rated on their responses. The SO indicated that the interview panel only referred the two candidates with the highest scores to him for a final selection decision. Because Complainant’s score placed him fifth out of the eight candidates, the SO stated that Complainant’s name was not referred for his consideration. 2020004727 4 The eventual Selectee (Puerto Rican, age 32) had received the highest score by the panel and the SO stated this was why he selected him. The SO further denied any knowledge of the selectee’s national origin or age at the time of the selection decision. P1 (Puerto Rican/Italian/German, age 42), P2 (Native African American, age 57), and P3 (Irish/Italian/German/Dutch, age 44) confirmed that all candidates were asked the same questions and the panel members individually rated their scores and then these scores were combined for a total. P2 and P3 stated that they were from different facilities and did not know Complainant prior to the interview or his national origin or age. P1 stated that he was a co- worker of Complainant, but asserted he was unaware of his national origin and did not know more than his approximate age. All three panelists also asserted they did not know the national origin or age of the selectee at the time they rated and ranked the candidates. Documentary evidence of record confirms that Complainant had the fifth highest score given by the panel with 84 points. Complainant received a total of 28 points from P1, 26 points from P2, and 30 points from P3. A breakdown of the interview panel’s individual scores for Complainant’s responses to each of the interview questions did not deviate significantly.2 Interview Question P1 P2 P3 Question 1 3 4 4 Question 2 3 3 4 Question 3 2 2 4 Question 4 1 3 4 Question 5 3 2 3 Question 6 4 3 3 Question 7 3 3 2 Question 8 5 4 3 Question 9 4 2 3 Total 28 points Total 26 points Total 30 points Documentary evidence supports that Complainant received the lowest scores for Questions 3, 4, 5, 7, and 9 and these scores were based on Complainant’s responses to the questions. We discuss these responses and associated scores in detail below. Question 3: Tell me specifically what self-development activities you have participated in during the last year. What self-development activities are you currently engaged in? The record indicates that P1 and P2 gave Complainant a score of 2. P1 noted that Complainant applied for physical security and executive protection courses but choose to attend Field Training Officer (“FTO”) training for new recruits to educate officers to trust leadership. 2 A score of 1 is “Poor,” a score of 2 is “Fair,” a score of 3 is “Good,” a score of 4 is “Very Good,” and a score of 5 is “Excellent.” 2020004727 5 P2 indicated that Complainant choose FTO over physical security and choose FTO “to be better asset to agency.” Question 4: Describe the most significant written document or report that you have completed. The record indicates that P1 gave Complainant a score of 1. P1 indicated that Complainant “did not answer the question but did give a good example of recovering a stolen laptop,” and Complainant “did not mention anything about writing a report or documents.” P1’s overall notes for Complainant’s interview performance state, “did not answer all questions specifically. Seems experienced and dedicated.” Question 5: Give me an example of a problem you faced on the job and how you solved it. Describe your actions. What was the outcome? The record indicates that P2 gave Complainant a score of 2. P2 indicated in his notes that Complainant described “manpower issues” and that he suggested that leadership cover a shift by switching a shift with another officer to eliminate overtime and allow another officer to have time off. Question 7: Tell me about a specific time when those with whom you were working could not agree upon the course of action. How did you approach the situation and what was the outcome? The record indicates that P3 gave Complainant a score of 2. P3 indicated that Complainant assisted with a veteran who needed observation and Complainant helped ensure that everything was documented. Question 9: If selected, the department will make a huge investment in preparing you to serve as a Canine officer. Why should we select you over other candidates? The record reflects that P2 gave Complainant a score of 2. P2 indicated in his notes that Complainant responded that he should be selected due to his years of experience and exposure to veterans and employees and that he would, if chosen, “make the K9 the best dog in the region/nation.” In contrast, the panel gave the Selectee an overall interview rating of 105 points. A breakdown of the Selectee’s culminative scores for each of the panel members only varied by one point. The Selectee received a total of 35 points from P1, 34 points from P2, and 36 points from P3. Interview Question P1 P2 P3 Question 1 5 5 5 Question 2 4 3 5 Question 3 3 4 3 2020004727 6 Question 4 4 4 4 Question 5 4 4 3 Question 6 2 3 3 Question 7 4 3 3 Question 8 5 4 5 Question 9 4 4 5 Total 35 points Total 34 points Total 36 points Documentary evidence supports that the Selectee received the lowest scores for Questions 2, 3, 5, 6, and 7 and that these scores were based on the Selectee’s responses to the questions. We discuss these responses and associated scores in detail below. Question 2: Describe a time when you worked as a member of a team to accomplish a goal of your organization. What role did you play? Describe how the team worked together. What was the outcome? The record indicates that P2 gave Selectee a score of 3. P2 noted that Selectee described a situation where a person had broken a piece of plastic and threatened harm. P2 further noted that Selectee explained that he took the lead and was able to cuff the person without issue. Question 3: Tell me specifically what self-development activities you have participated in during the last year. What self-development activities are you currently engaged in? The record indicates that P1 and P3 gave the Selectee a score of 3. P1 indicated that Selectee stated that he took as many classes as he could which included an executive protection course and local training courses and he was planning to take computer courses. P3 indicated that the Selectee stated that he was taking as many classes as he could. Question 5: Give me an example of a problem you faced on the job and how you solved it. Describe your actions. What was the outcome? The record indicates that P3 gave the Selectee a score of 3. P3 indicated that the Selectee explained that he had a situation where a patient broke off a piece of plastic and the Selectee was able to get the patient to release the plastic which allowed the Selectee to put restraints on the patient. Question 6: Give me an example of an occasion when you were able to communicate successfully with a coworker, even when that individual may not have personally liked you. Describe your actions. What was the outcome? The record indicates that P1 gave Selectee a score of 2 and P2 and P3 gave the Selectee a score of 3. P1 indicated that the Selectee explained that he is direct with coworkers, “gets the job done,” and discusses with supervisor afterwards. However, P1 noted that Selectee was “not specific” with his answer. 2020004727 7 P2 indicated that the Selectee responded that “some don’t like taking direction” and that he “didn’t have a problem taking the lead.” P3 indicated that the Selectee responded that his co- workers are not the best communicators. The Selectee further responded that if people do not like the directions, he can talk with them about the matter. Question 7: Tell me about a specific time when those with whom you were working could not agree upon the course of action. How did you approach the situation and what was the outcome? The record indicates that P2 and P3 gave Selectee a score of 3. P2 indicated that Selectee stated that he “choose a different course of action to determine flaws and delays with the system.” P3 explained that Selectee and a coworker disagreed with how to conduct an assessment but reached an agreement. We conclude that the weight of the evidence fully supports the AJ’s determination that the Agency officials responsible for the selection proffered legitimate, non-discriminatory reasons for deciding that the Selectee was better qualified for the position than Complainant. Complainant has failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination based on Complainant’s national origin or age. In reaching this conclusion, we address Complainant’s argument concerning Lenard H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001566 (May 12, 2020), where the Commission’s found discrimination in another appeal where an applicant applied for the same vacancy at issue in the instant complaint and was not selected for the position. Most significantly, we note that the finding of discrimination in EEOC Appeal No. 2019001566 did not result from any affirmative evidence of discrimination, but rather the failure of the Agency to adequately articulate its reasons for the selection decision. Specifically, the decision in EEOC Appeal No. 2019001566 found that the only explanation offered for the complainant’s non-selection was that the Selectee received a higher interview score. In that case, because the record only contained the interview scores for all applicants, without any interview notes, we determined that this evidence alone was “not sufficient to provide a specific, clear, and individualized explanation as to why complainant was not selected for the position he was deemed qualified.” In contrast, here the record has been fully developed and, as detailed above, includes the interview scores as well as the individual score sheets with notes for each applicant completed by each of the interview panel members.3 Therefore, we do not find that the finding in EEOC Appeal No. 2019001566 is probative of discrimination in the instant complaint. 3 We note that the Report of Investigation (ROI) for the instant formal complaint does not include the candidates’ individuals score sheets with notes provided by the interview panel. However, the ROIs for the other three related complaints (Agency Nos. 200H-0561-2017105067, 200H-0561-2017900278 and 200H-0561-201705062) include this information, including that relevant to this complainant. 2020004727 8 CONCLUSION The Agency's final order implementing the AJ's finding of no discrimination, without a hearing, is AFFIRMED. 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. 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. 2020004727 9 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. 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 9, 2020 Date