Lloyd H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 4, 20202019002888 (E.E.O.C. Aug. 4, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lloyd H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002888 Hearing Nos. 532-2014-00016X, 530-2016-00004X Agency Nos. 200H-0757-2013-101041, 200H-0757-2014-102663, 200H-0757-2015-103867, 200H-0757-2017-101079 DECISION On February 11, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 1, 2019, final decision concerning four of his equal employment opportunity (EEO) complaints, as referenced above. He alleged 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Medical Support Assistant, GS-5, at the Agency’s VA Ambulatory Care Center facility in Columbus, Ohio. On April 1, 2013, Complainant filed the first of the above-referenced four EEO complaints. As amended, Agency No. 200H-0757-2013-101041 (complaint 1) alleged that the Agency discriminated against him on the bases of race (African-American) and reprisal for current protected EEO activity under Title VII, 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. 2019002888 2 1. on November 29, 2012, a Patient Advocate rated him “Fully Successful” for his performance rating; 2. on February 15, 2013, he was not selected for the position of Program Support Assistance, as announced under vacancy announcement number 757-13- 0161769125 (Position 1); and 3. on July 12, 2013, he was not selected for the position of Program Support Assistant as announced under Vacancy Announcement No. 757-13-1311-864034 (Position 2). On June 10, 2014, he filed Agency No. 200H-0757-2014-102663 (complaint 2), alleging that officials at the VA Outpatient Clinic discriminated against him on the bases of race (African- American), sex (male), age (56), and reprisal, when: 1. on April 10, 2014, he was informed that he would not be interviewed and was non- selected for the Program Support Assistant position under vacancy announcement number 757-14-0991-1050177 (Position 3); and 2. on July 10, 2014, he was not selected for the position of Program Assistant under vacancy announcement number 757-14-2151-1127837 (Position 4). On September 3, 2015, he filed Agency No. 200H-0757-2015-103867 (complaint 3), alleging discrimination on the bases of race, sex, reprisal and age, when, on April 29, 2015, he became aware that he was not selected for the position of Program Support Assistant, Geriatrics, under Vacancy Announcement Number 757-15-2061-1371404-BU (Position 5). Thereafter, on March 24, 2017, Complainant filed complaint 4, Agency No. 200H-0757-2017- 101079, in which he alleged discrimination on the bases of race, sex, age discrimination and reprisal, when: 1. on December 1, 2016, he became aware that his previous supervisor, a Supervisory Medical Support Assistant, rated him “Fully Successful” on his annual performance appraisal; and 2. in March 2017, after his February 15, 2017 interview, he became aware that he was not selected for the position of Lead Medical Support Assistant, Primary Care, under Announcement Number 757-17-1211-1892716 (Position 6). The pertinent record reveals the following facts. Complainant identified his race as Black, sex as male, and age 10/1958 (56). Our review of the record shows that Complainant has consistently alleged reprisal for his EEO activity in each of his complaints. Complainant has been employed by the Agency since July 2010. He identified his grade as GS-5 in his first complaint. He is currently a GS-9 and his position of record is Supportive Employee Vocational Counselor. The record shows his most recent rating as Outstanding. 2019002888 3 He reported to the Medical Administrative Support Supervisor until March 2012, when his supervisor became the Patient Advocate Program Manager (“S1”) (Caucasian female). She prepared his midyear evaluation, but not his final annual evaluation. On November 29, 2012, he received a “Fully Successful” performance evaluation. He later worked under the immediate supervision of the Supervisory Medical Administrative Specialist/Administrative Officer, Patient Business and Primary Care (“S1A”) (Caucasian) . Complaint 1: Non-Selection for Position 1 On October 17, 2012, Complainant applied to the position of Program Support Assistant as announced under vacancy announcement number 757-13-0161769125. Complainant faxed his application to Human Resources (HR). He contacted an HR Specialist (“HR1”) (Caucasian) when he learned that another employee was interviewing for the position. HR1 advised Complainant that his application packet, specifically his questionnaire, had not been received. Complainant provided a fax confirmation. His application materials were placed under mismatched documents, thereby indicating that his application was incomplete. HR1 submitted Complainant’s application materials to the Chief, Care Management and Social Work (Caucasian), who was the selecting official for the position. Complainant was not interviewed. The selecting official reviewed and evaluated Complainant’s application against the other applicants who had already been reviewed but decided not to interview him. She had already made a tentative selection, but had not submitted the selection decision to HR. The selectee for the position was an African-American woman. The selecting official stated that she found her to be the best candidate because the selectee had the data experience that management was looking for and the selectee was interest in growth. HR1 and the selecting official denied knowledge of Complainant’s race. Complaint 1: Non-Selection for Position 2 Complainant applied and was interviewed for the position of Program Support Assistant in the Community Outreach Division. He was one of the six (out of 12) candidates interviewed by a panel of three management officials, one who was also the final selecting official (“PM1”) (Caucasian). Following the interviews, Complainant was rated fifth out of the six candidates interviewed. Panel members reasoned that some of Complainant’s experience was unclear and he had some unexplained gaps. The panelists denied knowledge of Complainant’s prior protected EEO activity. The panel members stated that the panel “determined that the selectee’s education and background before she came to the agency made her a good fit as a team player.” Based on the interview, panel members were concerned with Complainant’s skill in multitasking and flexibility. Panelist 2 averred that she would have made Complainant her third or fourth choice. Panelist 3 explained that the panel was looking for someone who could be flexible due to the changing nature of the department. A Middle Eastern woman with prior EEO activity was selected. 2019002888 4 Complaint 2: Non-Selection for Position 3 Complainant applied for the position of Program Support Assistant located in the Care Management and Social Work Service under Vacancy Announcement 757-14-0991-1050177. (Position 3) The Chief, Care Management and Social Work Service (Caucasian, male) was a member of the three-person performance-based interview panel and was also the selecting official. The position reported directly to the selecting official. Complainant averred that he was not selected for position 3 in reprisal for his filing a prior EEO complaint against the selecting official in 2012. The selecting official acknowledge he was aware of this complaint. The selecting official averred that he directed the other two panel members to choose the top four candidates to interview. Panelist 2 (“PM2”) denied knowledge of Complainant’s prior EEO activity. PM2 said that Complainant did not meet the same qualification level of the four other applicants because he did not possess a Master’s degree. Complainant’s resume focused on his experience dealing with behavioral health clients, although Complainant’s resume also mentioned that he had a Bachelor’s degree in Computer Science. The panel did not consider Complainant among the top four candidates. On April 10, 2014, Complainant was informed that he would not be interviewed. The selecting officiate selected from those interviewed. The selected candidate possessed a Master’s degree in Health Administration, had a background as a manager, had previously managed data and had clinical experience. The Certificate of Questionnaire, dated December 5, 2014, reveals that the selectee was specifically selected “because of her experience in dealing with the data and statistics.”. Complaint 2: Non-Selection for Position 4 On July 10, 2014, Complainant learned that he was not selected for the position of Program Assistant under announcement number 757-14-2151-1127837, for which he had applied and was found qualified. The position 4 was in the Behavioral Health Service. The Chief, Mental Health Service/Behavioral Health was the selecting official. According to him, Complainant was not interviewed because his “resume did not reflect the technical skills needed for the position.” The selectee was a male candidate who was employed as Chef of Canteen Services. The selectee’s race and EEO activity was unknown. Complaint 5: Non-Selection for Position 5 Complainant applied for the position of Program Support Assistant, Geriatrics and Extended Care Line, under Vacancy Announcement Number 757-15-2061-1371404-BU. Complainant was among the three internal candidates on the certificate of candidates sent to the selecting official for interviews and selection. 2019002888 5 The Chief, Geriatrics (White, female, 34 years of age, DOB 1980) was a panel member and was also the selecting official. The selecting official averred that she was aware of Complainant’s race and sex, but not his age and prior EEO activity. Complainant was interviewed. The interviewees were scored, rated, and ranked on a numeric scale from one to five based upon their answers to the questions. The panel recommended the selection of a candidate (African American female in her 30s, prior EEO activity unknown). The panel stated that there were some questions that Complainant did not completely answer. Another panelist stated that, in her opinion, the selectee was more qualified that the Complainant “due to her financial background, the nursing home billing background.” The selecting official stated that Complainant did not demonstrate that he had the skills to match the position. Complainant was viewed as less qualified in the areas that management needed because he did not have the skill set related to the budgetary and reporting processes critical to the position. The selecting official also thought Complainant lacked credibility when he said that he could learn and master Excel in a day. The selecting official described the interviews of the three internal candidates, including Complainant’s, as being “pretty mediocre.” The selecting official stated she was looking for someone with financial experience, Excel experience, an “understanding of the VA fee system, FMS and authorizations because Geriatrics ran a small fee department.” The position had no patient contact and the SO deemed case management experience “irrelevant.” No one was selected from the certificate. The decision was made not to offer the position to any of these candidates and to repost the position for both internal and external candidates. Complainant did not re-apply for the position. Consequently, Complainant’s name was not on the second certificate for the re-announced posting. The Agency later selected an African-American female, under age 40, with no known prior EEO activity. Complaint 4: Fully Successful Performance Rating Complainant worked under the immediate supervision of the Primary Care Supervisor of Medical Support Assistant (“S1”) (White, male, 67 years of age). Complainant’s performance plan was signed by S1 on February 17, 2016, and also signed by Complainant’s second level supervisor, who was another Primary Care Supervisor, Medical Support Assistant (“S2”) (Black, male, 55 years). S2 averred that he was aware of Complainant’s race and sex, but not his age or prior EEO activity. On December 1, 2016, Complainant learned that S1, who was no longer his supervisor, had issued him an overall rating of “Fully Successful” for the performance plan period covering the time period of October 1, 2015 to September 30, 2016. Complainant and three other African-American coworkers under the immediate supervision of S1 disputed their ratings and refused to sign their fully successful rating. 2019002888 6 S1 met with a Caucasian coworker who also disputed his performance rating and S1 upgraded the performance rating of the Caucasian employee. Complainant contended that S1 refused to meet with him and he was not permitted a higher-level management review. S2 (African American male), who succeeded S1 as Complainant’s supervisor, told Complainant that he did not have sufficient time to conclude whether or not Complainant’s Fully successful rating was appropriate. Following mediation, S1 informed the ORM investigator by email that Complainant’s “Fully Successful” rating was resolved. His rating was changed to “Outstanding” and signed by the Clinical Operations Manage on February 13, 2017. The revised language stated, “After further review, employee can be rated as exceptional on the element titled scheduling, resulting in an overall rating of “Outstanding.” The Agency stated that the upgraded revised appraisal was included in the record on January 24, 2019. Complaint 4: Non-Selection for Position 6 Complainant applied for the position of Lead Support Assistant. He was one of seven applicants. Of the seven, there were four females and three males. Five of the applicants were over 40 years of age. A panel was convened, consisting of the Supervisor MSA, Primary Care South, Division (Black, male, 55 years of age) and the MS6 Supervisor, Northside (race unknown, female, 64 years of age). Complainant was interviewed on February 15, 2017. The Performance-Based Interview consisted of five questions each having a value of from one to 10 points for a total score of 50 points. Complainant received a score of 30 points. Another candidate received a score of 31 points. That candidate was selected. She is an African-American, female, 35 years of age at the time of selection. The selecting officials testified that the Complainant was not selected because he failed to fully answer several questions and he was viewed as inappropriately dressed for the interview because he did not have a suit jacket and tie. Complainant was not issued a formal notice of his non-selection. In March of 2017, he noticed that someone else had assumed the duties of Lead Support Assistant, and Complainant assumed that this employee had in fact received the position. At the conclusion of the investigation of the first three complaints, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request and the complaints were returned to the Agency for issuance of a final decision. 2019002888 7 Regarding complaint 4, the Agency sent to Complainant’s attorney the notice of his right to request a hearing on complaint 4 on September 14, 2017. According to the complaint file, Complainant failed to respond to the notice. Accordingly, the Agency consolidated the four complaints for issuance of a final decision based on the evidence developed during the investigations. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination on complaints 1 to 4. The Agency reasoned that Complainant did not show that his qualifications were plainly superior to the individuals selected. Regarding the appraisal, the Agency found that management raised his rating to “Outstanding” and Complainant had not shown that the original rating was based on his race, sex, age, or reprisal for any of his prior EEO activity. The instant appeal followed. On appeal, Complainant states that the Agency’s agents failed to follow the VA procedures (VA Handbook Directive 5013) to review his contested performance appraisal. He says that he should have been granted an informal higher-level review opportunity to discuss his concerns and been instructed on his grievance rights. He alleges that a Caucasian employee was granted an opportunity to have his appraisal reviewed. He also states that internal errors caused his first application package not to reach the selecting official before she made her selection regarding position 1. Complainant disputes management’s articulated reasons that Complainant’s skills and experiences did not “jibe” with the requirements of the positions he sought. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2019002888 8 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated legitimate non-discriminatory reasons for its actions that Complainant has not shown to be a pretext for discrimination. For all the disputed non-selections, the various selecting officials explained they did not select Complainant for several reasons: 1) his application was deemed incomplete; 2) his resume had unexplained gaps and his experience was unclear; 3) he was not one of the top four referred for an interview; 4) his resume did not reflect the technical skills needed for the position, 5) no one was selected from the certificate, and 6) the Agency selected the candidate with the higher score who was viewed as more qualified for the positions. With regard to the performance rating, management witnesses stated that the initial rating resulted from an error in applying the performance elements and was later corrected and Complainant received an Outstanding rating. Regarding his retaliation claims, the record does not show that most of the named selecting officials and panel members were aware of his prior EEO activity or the prior EEO activity occurred more than a year prior. Therefore, we agree with the Agency that Complainant failed to establish a nexus between his protected EEO activity and the non-selections or appraisal. While Complainant points to systemic discrimination against Black males, without more, he has not established that any of these non-selections at issue were due to unlawful discrimination. We find some of the articulated reasons may seem unfair - such as that Complainant was deemed not properly dressed for an interview. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment provided it is not due to a protected basis. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603. See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). When looking at the big picture, the record in this case does not reflect discriminatory animus against Complainant. 2019002888 9 The Agency promoted Complainant from a GS-5 to a GS-9 during the period at issue and his rating was corrected to reflect an Outstanding rating for the last rating period at issue in this case. For these reasons, we find Complainant failed to prove, by a preponderance of the evidence, that management’s proffered reasons for the denial of promotions and appraisal were pretext designed to mask discrimination or unlawful retaliation. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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). 2019002888 10 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 August 4, 2020 Date Copy with citationCopy as parenthetical citation