Lawrence L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180120182073 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120182073 Hearing No. 430-2016-00334X Agency No. 2004-0637-2015105405 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 30, 2018, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant (Clinic Profiler/Clinic Profile Manager), GS-07, at the Agency’s Veterans Affairs Medical Center (VAMC) in Asheville, North Carolina. On October 26, 2015, Complainant filed his complaint, which was later amended, alleging discrimination in reprisal for prior EEO activity when: 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. 0120182073 2 (1) On August 21, 2015, he received notification that he was not qualified for the position of Human Resource Specialist (HRS) (Recruitment and Placement (R&P)), GS-11, vacancy announcement 635-15-267-AH-1464276. (2) On September 24, 2015, he became aware that he had not been selected for the position of HRS (R&P), GS-07, vacancy announcement 635-15-298-AH-1491322. (3) On November 27, 2015, he received notification that he was not qualified for the position of HRS (R&P), GS-11, vacancy announcement 637-16-029-TB-1549805. (4) On December 17, 2015, he received notification that he was not qualified for the position of HRS (R&P), GS-11, vacancy announcement 637-16-450-TB-1573845. (5) On January 21, 2016, he received notification that he was not qualified for the position of HRS (R&P), GS-0201-11, vacancy announcement 637-16-070-1588563. (6) On November 10, 2014, he received notification that the Agency decided not to fill the position of HRS (R&P), GS-11, vacancy announcement 637-15-025-AH-1241587.2 (7) On February 26, 2016, he became aware that he had not received notification of status or selection for the position of HRS (Benefits and Records (B&R), GS-11, vacancy announcement 637-14-190-YB-1145997. (8) On February 26, 2016, he became aware that he had not received notification of eligibility or selection for the position of HRS (R&P), GS-11, vacancy announcement 637-14-244-YB-1179949. (9) On March 3, 2016, he received notification that he was not eligible for the position of HRS (R&P), GS-11, vacancy announcement 637-16-099-TB-1610266-BU. (10) On March 25, 2016, he received notification that he was not eligible for the position of HRS (R&P), GS-11, vacancy announcement 637-16-144-TB-1644563. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for Decision Without a Hearing on March 14, 2017, and Complainant filed a Response. On April 18, 2018, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. 2 On March 30, 2016, the Agency dismissed claim (6) due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant does not argue on appeal the dismissal was improper. Regardless, we find the dismissal of claim (6) to be proper. The alleged incident occurred on November 10, 2014, but Complainant did not contact an EEO Counselor until September 16, 2015, which was beyond the 45-day time limit for contacting an EEO Counselor. 0120182073 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. At the time of events giving rise to this complaint, Complainant was a Program Support Assistant (Clinic Profiler/Clinic Profile Manager), GS-7 at VAMC in Asheville, North Carolina. Complainant applied for the positions at issue which were all located in the same facility in Asheville, North Carolina but was not selected. Claims (1) and (3) - (5): The Agency indicated that Complainant did not meet the time-in-grade requirement for the GS- 11 positions at issue. In his resume, Complainant indicated that he worked as a GS-7, Clinic Profile Manager since October 2012; a GS-7 HR Assistant, Staffing from October 2007 – October 2010; a part-time teacher from July 2009 – June 2010; a part-time construction worker from July 2008 – July 2009; a HR Manager in Sears from July 2006 - November 2007; a HR Management Specialist, FSN-10, in the U.S. Embassy in Nicaragua from August 2004 - March 2006; a teacher from June 2002 – July 2004; and a number of non-federal managerial and instructional positions prior to 2001. The vacancy announcements for the GS-11 positions at issue provided that applicants must possess one year of specialized experience equivalent to at least the next lower grade (GS-09). Despite his claim, Complainant failed to provide any evidence that he actually worked in HR as a HR manager equivalent to a GS-9 level. Furthermore, there is no evidence that his FSN-10 level position back in August 2004 – March 2006, qualified to meet the one year of specialized experience equivalent to a GS-9 level. 0120182073 4 The Agency HR Specialists indicated that after review of Complainant’s applications, they determined that he was not eligible for the positions at issue because the applications did not support the level of specialized/specific experience required for the position. The HR Specialists thus did not refer Complainant for consideration to the Selecting Official for the positions. The HR Specialists were not aware of Complainant’s prior EEO activity. We find that even if the HR Specialists were incorrect in their determination that Complainant was not eligible for the positions, there is no evidence that such determinations were motivated by discrimination. The Selecting Official (SO), who was not aware of Complainant’s prior EEO activity, ultimately selected GS-12 and GS-11 candidates for the positions at issue. For the position in claim (1), the SO selected a GS-12, HRS from the Agency’s West Haven facility in Connecticut. For the position in claim (3), the SO selected a GS-11, HRS from the Agency Biloxi facility in Mississippi but she declined the job offer. Thus, the Agency posted a new vacancy announcement described in claim (4). The SO selected a GS-11, HRS from the Agency’s Atlanta facility for the position in claim (4). For the position in claim (5), the SO selected a GS- 11, HRS. Claim (2): The SO indicated that two qualified candidates, including Complainant, were referred to her for consideration for the GS-7 (with promotion potential to GS-11), HRS position at issue. The SO interviewed both and selected the Selectee, who was a GS-9, HRS at the Agency’s Asheville facility based on her application and interview. The Selectee received an interview total score of 48 and Complainant received an interview score of 36. Claims (7) – (10): The vacancy announcements for the positions in claims (7) and (8) were cancelled. Complainant is not claiming, and there is no indication, that the positions were cancelled in order not to select Complainant. For the positions in claims (9) and (10), all applicants, including Complainant, were not qualified for the positions and none were referred for consideration for the positions. No selection was made and no new vacancy announcement was issued. Complainant has not shown that he was qualified. Furthermore, even the HR Specialists were incorrect in their determination that Complainant was not eligible for the positions, there is no evidence that such determination was motivated by discrimination. Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the positions. Furthermore, Complainant failed to show that his qualifications for the positions were plainly superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. 0120182073 5 CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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 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). 0120182073 6 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. 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 November 2, 2018 Date Copy with citationCopy as parenthetical citation