Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 7, 20150120132952 (E.E.O.C. Jan. 7, 2015) Copy Citation 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 0120132952 2 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 0120132952 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 Copy with citationCopy as parenthetical citation