Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 4, 2014

0120141791 (E.E.O.C. Dec. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120141791

Hearing No. 430-2013-00103X

Agency No. 200H-0652-2012102957

DECISION
On April 11, 2014, Complainant filed an appeal from the Agency’s March 17, 2014 final order
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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
Complainant was the Assistant Chief of the Environmental Management Service at the
Agency’s medical center in Richmond, Virginia. On May 28, 2012, he filed an EEO
complaint in which he alleged that the facility’s Associate Director discriminated against him
on the bases of race (African-American), disability and in reprisal for prior protected activity
by not promoting him to Environment and Food Service Chief on March 27, 2012. 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s July 1, 2013 motion for summary judgment and
issued a decision on February 4, 2014. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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The Associate Director appointed the Engineering Service Chief, the Administrative Officer
for Geriatrics, and the Associate Chief Nurse to the selection panel for the vacancy at issue.
They reviewed the application packages of ten candidates, rated them on a scale of 1 to 105
points, and ranked the candidates according to their scores. The eventual selectee was ranked
first with a score of 104. The top four candidates were interviewed. Complainant was the
fifth-ranked candidate with a score of 70. Consequently, his candidacy for the position ended at
this stage of the process, and he was not interviewed. The panelists scored the candidates
based on their interview responses and referred the selectee and one other candidate to the
Associate Director, who interviewed each one of them and ultimately chose the selectee. The
selectee was African-American and had a disability rating of 30%. Investigative Report (IR)
101-02, 106-08, 111, 119-20, 124. 134-41, 146-51, 159-63, 267-73, 278. When asked why he
believed that the selection was discriminatory even though the selectee was of the same race
and had the same disability rating as him, Complainant replied that the facility did not promote
African-American candidates from within the organization. IR 55-56.

ANALYSIS AND FINDINGS
To warrant a hearing on his disparate treatment claim, Complainant would have to present
enough evidence to raise a genuine issue of material fact as to whether the Associate Director
or any of the panelists were motivated by unlawful considerations of his race, disability, or
previous EEO activity in connection with the selection process for Environment and food
Service Chief. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000). Without evidence of a discriminatory or retaliatory animus on the
part of any of these officials, the Commission cannot second-guess the decisions they made
pursuant to that process. See Texas Department of Community. Affairs v. Burdine, 450 U.S.
248, 259 (1981). In promotion cases such as this, such evidence may take the form of a
showing that Complainant’s qualifications are plainly superior to those of the selectee. Guida
v. United States Postal Service

, EEOC Appeal No. 01923174 (April 15, 1993).
P1’s memorandum of March 2012, the score sheets completed by the panelists, and the
affidavits of the Associate Director, the three panelists, and the Human Resources Specialist
involved in the selection support the Agency’s contention that the selectee was the best
qualified candidate for the position. Moreover, the selectee, like Complainant, was African-
American and had a 30 percent disability rating. While Complainant expressed his belief that
the Associate Director and the panelists had discriminated against him in the selection process,
he has not presented any sworn statements from other witnesses, documents, or any other
evidence that contradicts the affidavit testimony provided by the panelists and the Associate
Director. Unsupported assertions are not sufficient evidence of illegal motive. Porter v.
Department of the Navy

, EEOC Petition No. 03800087 (January 14, 1981). We therefore
find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to
whether any official involved in the selection of the Environment and Food Service Chief had
unlawfully factored his race, disability, or previous EEO activity into the process. We
discern no basis to disturb the AJ’s decision.
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CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
December 4, 2014