Arthur F.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 26, 20180120162056 (E.E.O.C. Apr. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur F.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162056 Agency No. 200J-0553-2015103458 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 April 28, 2016, 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. BACKGROUND Between March and May 2015, Complainant applied for two positions as a Human Resources Assistant, GS-0203-05 at the Agency’s Medical Center in Detroit, Michigan. On July 5, 2015, after having been notified that he had not been selected for either position, Complainant filed an EEO complaint in which he alleged that the Selecting Official and the Review Panelists for the first vacancy had discriminated against him on the bases of race (Caucasian), sex (male), and age (59), by not selecting him on March 31, 2015. He also alleged that the Selecting Official and the Review Panelists for the second vacancy had retaliated against him for initiating the EEO process in connection with the first nonselection by not selecting him for that position on May 28, 2015. 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. 0120162056 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final Agency decision, and 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. The First Vacancy: Complainant claimed that he was discriminated against on the bases of race, sex, and age when on March 31, 2014, he was notified that he had not been selected for the position of Human Resources Assistant for Information Systems. Complainant was among the candidates referred for a performance-based interview by the Human Resources office. According to the Selecting Official and the panelists, candidates were evaluated on the basis of their resume (15%), their responses to the interview questions (45%); and a check of their references (40%). The scores from each element of the process would be weighted and combined into a single score. Complainant’s combined score was 21.65 while the Selectee’s combined score was 22.35. The panelists averred that they had recommended the Selectee because she had government experience in human resources and customer services, and that Complainant’s resume did not include such experience. The Second Vacancy: Complainant claimed that he was retaliated against for contacting an EEO counselor in connection with his earlier nonselection when, on May 28, 2015, he was notified that he had not been selected for the position of Human Resources Assistant for Recruitment and Placement. The merit selection process for the second vacancy was similar to the first, the only significant difference being that the interviews were conducted by telephone. As with his earlier application, Complainant was certified as among the best qualified candidates and referred to the review panel. For this vacancy, Complainant was given a combined weighted score of 20.90, which indicated that he met but did not exceed the threshold skills of providing technical support for recruitment and placement activities. The four Selectees who were chosen had scores as follows: the first Selectee – 25.15; the second Selectee – 24.40; the third Selectee – 23.80; and the fourth Selectee – 21.10. According to one of the panelists, the fourth Selectee declined the offer of employment. According to the EEO Counselor’s report, Complainant initiated the informal EEO process on May 19, 2015, after he received word of the first nonselection but before he received notice of the second. The parties attempted to resolve the matter through mediation, but were unsuccessful. In its letter of partial acceptance of Complainant’s complaint, the Agency dismissed for failure to state a claim, an allegation in which Complainant stated that the EEO Program Manager failed to respond to his safety concerns and to his request for a reasonable accommodation during the mediation session. The Agency also noted that Complainant had challenged a number of actions that had occurred prior to the mediation, including the dissemination of his name and email address to members of the Human Resource office’s staff a 0120162056 3 few days before the mediation and the failure to provide certain documents that he had requested prior to the mediation and on the day of the mediation itself. 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”). We must first address the Agency’s dismissal of that portion of Complainant’s EEO claim that pertained to the various actions of the EEO Program Manager on the grounds that Complainant was challenging actions that had occurred during the mediation process. On appeal, Complainant contends that the Agency erred in dismissing this allegation because these incidents had all taken place prior to the mediation. Appeal Brief, pp. 7-9. We disagree. It is settled precedent that settlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally. Darla W. v. Dept. of the Air Force, EEOC Appeal No. 0120172962 (Feb. 6, 2018) citing Thomason v. Dept. of the Army, EEOC Appeal No. 01A54061 (Jun. 22, 2006). See also Arica C. v. Dept. of Commerce, EEOC Appeal No. 0120142412 (Nov. 30, 2016), request for reconsideration denied, EEOC Request No. 0520170185 (Apr. 19, 2017). The actions of the EEO Program Manager that Complainant challenged either were centered around or arose out of the mediation, notwithstanding Complainant’s attempts to characterize them as taking place before the mediation. Complainant cites no legal authority in support of his contention. Accordingly, we affirm the Agency’s dismissal of his complaint allegation pertaining to the actions of the EEO Program Manager. However, we note to the Agency that although Complainant did not allege discrimination on the basis of disability, it should be mindful of its responsibility to respond to requests for reasonable accommodation in the mediation process. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As a first step, 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for either vacancy. See U.S. Postal Service Board 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). 0120162056 4 The Selecting Official and the panelists all averred that although Complainant was among those referred for an interview, the Selectees for both positions were more qualified, and performed better in the interviews. 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community 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). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). In situations involving hiring or promotion, the applicant should bear in mind that employers have broad discretion to set policies and carry out personnel decisions, and should not be second- guessed by the reviewing authority absence evidence of unlawful motivation. Kiara R. v. Dept. of Agriculture, EEOC Appeal No. 0120161558 (March 30, 2018) citing Burdine supra at 259. What this means is that agencies have discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations which in this case would include race, sex, age, or prior EEO activity. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). Agencies may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). Complainant could demonstrate pretext by showing that his qualifications for the positions were plainly superior to those of the Selectees. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). He could also do so by pointing to other indicators of pretext including discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked by the EEO Investigator why he believed that his nonselections for both positions were motivated by considerations of his race, sex, and age, Complainant averred that there were very few Caucasians present when he visited the Agency for his in-person interview and the mediation, that the vast majority of those present were female, and that he did not see any Human Resource Assistants or other staff much older than forty. IR 207-08, 214. When asked why he believed the second nonselection was due to reprisal, he averred that the EEO Program 0120162056 5 Manager cancelled his first meeting to set a mediation on the same day that he had received notice of his second nonselection. IR 214-15. Beyond these assertions, Complainant has not presented affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that contradict the explanations provided by the selecting officials and the review panelists for the two positions for choosing the Selectees or which calls their veracity into question. Complainant appears to be arguing on appeal that the panelists’ decision to exclude those without recent military experience was indicative of age discrimination. He also argues that one of the panelist’s citing of “government experience” as a reason for choosing the Selectee over him for the first vacancy is indicative of pretext. He also contends that the investigation was incomplete. To the extent he believed the investigative report was missing critical information and that the statements given to the investigator by the selecting officials and the review panelists lacked credibility, he was given the opportunity to request a hearing before an EEOC AJ, during which he could have obtained more information in the discovery process. As Complainant chose not to pursue that option, the Commission does not have the benefit of that additional evidence or an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Based upon the weight of the evidence before us, we agree with the Agency that Complainant failed to sustain his burden to establish the existence of an unlawful motivation attributable to any official involved the selection processes for the two vacancies at issue in this complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was discriminated against as alleged. 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 0120162056 6 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. 0120162056 7 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 April 26, 2018 Date Copy with citationCopy as parenthetical citation