0120122695
09-25-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122695
Agency No. 200I-0516-2010105081
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 12, 2012, 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 Agency's final decision (FAD) which found that Complainant failed to demonstrate that he was subjected to discrimination as alleged is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Specialist, GS-13 at the Agency's VA Medical Center facility in Los Angeles, California. Complainant applied for the position of Human Resources Specialist, GS-12, at the Bay Pines VA Healthcare System in Bay Pines, Florida. The Announcement described the incumbent as being responsible for recruitment and placement activity for all assigned positions, including Title 38 (Nursing), Hybrid Title 38, Title 5, General Schedule, Wage Grade, and Non-appropriated Fund employment in the competitive and excepted Federal service. The position included professional, technical, clerical, unskilled, semi-skilled and skilled trades and crafts. It was also noted that the Incumbent would develop innovative solutions to solving problems in the areas of recruitment for hard to fill vacancies. Complainant was interviewed for the position but was not selected. The person selected for the position had recent experience that fit the requirements of the position. The selectee however declined the position.
The position was re-announced and Complainant was interviewed a second time. The final question for the interview was an email question which required Complainant to respond to the question within 15 to 20 minutes. Complainant indicated that he would be able to respond within the allotted time frame. Two days later, Complainant was contacted to ask if there was a problem because he had not responded to the question. Complainant told the selecting official that he had just arrived at the Puerto Rico VAMC and was preparing to answer the question. On August 23, 2010, Complainant was notified that he had not been selected for the position. The selecting official maintained that Complainant lacked recent staffing experience and noted that his most recent staffing experience dated back to 2004-2005. Due to the multiple and varied changes that had transpired in VA Handbooks 5005 and 5007 in 2006, it was important that the position be filled by a candidate with up-to-date VA staffing knowledge and experience. Further, the selecting official found that Complainant failed to prove that he was a viable candidate for this position due to his inability to follow instructions and his failure to notify the selecting official that he was having difficulty completing the interview process. No one was selected to fill this position. Complainant however alleged that he was not selected because of his national origin and accent, as English is his second language. He felt this was confirmed by management requiring him to submit an e-mail writing sample within an hour, and by his EEO counselor, telling him that the selectee was Hispanic.1 He called the selectee, and she indicated that she was not Hispanic. Complainant also maintained that his work is similar to staffing duties.
On November 10, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic) when he was not selected for the position of Human Resources Specialist (Recruitment/Placement), GS-12.
Following an investigation by the Agency, the FAD found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the position because he did not have current staffing experience and because he failed to follow directions with regard to his response to the email question. The Agency noted that the person originally selected for the position had recent staffing experience while Complainant did not have that specific experience. The Agency found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant did not provide a brief. The Agency requested that the FAD be affirmed as legitimate, nondiscriminatory reasons were articulated for Complainant's nonselection and he failed to show that the reasons were pretext for discrimination.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if we assume arguendo that Complainant established a prima facie case of national origin discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions as were discussed above and Complainant failed to demonstrate that those reasons were pretext for discrimination. We find Complainant provided no arguments on appeal and did not offer any evidence that he had current staffing experience or that he responded to the email question in a timely fashion. Additionally, we find that Complainant provided no evidence other than his own conclusory statements that his accent was a factor in his nonselection; and while it was unusual that the Agency would require a timed email question as part of the application process, Complainant has not established that he was treated differently than the other candidates who also had to respond in the same manner. Complainant, however, did not respond to the question in a timely manner. We find that Complainant has not shown that discriminatory animus was a factor in this case. We find the preponderance of the evidence of record does not establish that discrimination occurred.
Accordingly, the Agency's FAD which found that Complainant failed to show that he was subjected to discrimination is AFFIRMED.
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 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
___9/25/14_______________
Date
1 The EEO Counselor indicated that he did not say in response to Complainant's question that the selectee was also Hispanic. He maintained that he told Complainant that she could be as her name could be a Hispanic name.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122695
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122695