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

Equal Employment Opportunity Commission

Jan 7, 2015

0120132952 (E.E.O.C. Jan. 7, 2015)

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. 0120132952

Hearing No. 530-2009-00214X

Agency No. 200H-0542-2008103855

DECISION
On August 3, 2013, Complainant filed an appeal from the Agency’s July 18, 2013, 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. 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 worked as an Administrative Officer at the Agency’s medical center in
Coatesville, Pennsylvania. He applied for the Management and Program Analyst position
advertised under Vacancy Announcement No. MPA#103FY2008, but was notified on July 22,
2008, that he had not been selected. Complainant and one other internal candidate had been
referred to the Director of Mental Health Services, the selecting official (SO), but the SO
chose not to interview either one. Three external candidates were referred to the selection
committee, which consisted of the SO, two Health Systems Specialists (Panelists 1 and 2) and
the Chief Psychiatrist (Panelist 3). The selectee, a female, was chosen from among this group.
Investigative Report (IR) 106, 117, 197-99. 235, 239-50.

On October 1, 2008, Complainant filed an EEO complaint in which he alleged that the SO
discriminated against him on the basis of sex by not interviewing him for the position. The
Agency investigated the complaint and informed Complainant of his right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but the
AJ assigned to the case granted the Agency’s February 1, 2013, motion for summary
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judgment, over Complainant’s objections. 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.

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 SO was motivated
by unlawful considerations of his gender when she decided not to interview him for the
Management and Program Analyst vacancy. See 29 C.F.R. § 1614.109(g); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). The Commission cannot
second-guess an Agency’s decisions involving selection of personnel unless there is evidence of
a discriminatory motivation on the part of the officials responsible for the selection. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). Such evidence can
take the form of a showing that Complainant’s qualifications for the position at issue were
plainly superior to those of the selectee. Guida v. United States Postal Service

, EEOC Appeal
No. 01923174 (April 15, 1993).
When asked by the investigator why he believed that he was better qualified than the selectee,
Complainant replied that he possessed 25 years of experience in health administration. The
Commission has consistently held, however, that having more years of experience than a
selectee does not necessarily make an individual more qualified to meet the needs of the
organization. See Collins v. Dep't of Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004).
The SO and the three panelists all testified in their affidavits that supervisory experience,
demonstrated experience in coordinating and implementing high-level projects, ability to work
independently and as a member of a team, and a strong data analysis background were the
qualifications they were looking for. The SO averred that, after reviewing Complainant’s
application, she determined that Complainant had little to no supervisory experience, no
involvement in high-level projects, and no background in data analysis. Her assessment of
Complainant’s qualifications was corroborated by Panelists 2 and 3. IR 116-18, 131-32, 136.
On the basis of this evidentiary record, we find that Complainant failed to raise a genuine issue
of material fact as to whether his qualifications were plainly superior to the selectee’s.

Evidence of unlawful intent can take other forms, including discriminatory statements or past
personal treatment, comparative or statistical data, unequal application of Agency policy, or
deviations from standard procedures without explanation or justification. See Hovey v.
Department of Housing & Urban Development, EEOC Appeal No. 01973965, (Aug. 31,
2000). When asked to explain why he believed that his nonselection was based on his gender,
Complainant responded that he should have been interviewed by virtue of having been rated
best-qualified, and that he was advised that three employees could attest to the fact that the SO
“did not like males.” It is true that Complainant was designated as one of two best qualified
candidates on a list of internal promotion eligibles referred to the SO. A Human Resources
Specialist averred, however, there were no regulations requiring the SO to interview all of the
candidates. The SO had reviewed the application packages of all the candidates and had
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3
determined that neither internal applicant presented the qualifications she was looking for. IR
107-08, 144, 235. Complainant has not presented any sworn statements from witnesses other
than himself or any documents which contradict the explanations provided by the SO, the
panelists, or the Human Resources Specialist. He has likewise not presented any evidence
apartment from his own affidavit regarding SO’s alleged dislike of men. 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 no evidence of
discriminatory statements or treatment or of a deviation from standard recruitment and hiring
procedures that would support an inference of unlawful motivation on the part of the SO.
Overall, we agree with the AJ that the evidence provided by Complainant is insufficient to
raise a genuine issue of material fact as to the SO’s motivation in deciding not to interview him
for the Management and Program Analyst position at issue in his complaint.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, 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
0120132952

4
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

Date
January 7, 2015