Omer P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 14, 2019

2019001108 (E.E.O.C. Mar. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Omer P.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019001108

Hearing No. 430-2017-00217X

Agency No. 2001-0319-2016104347

DECISION

On September 28, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 31, 2018 final order concerning an equal employment opportunity (EEO)
complaint claiming 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

During the period at issue, Complainant worked as a Claims Assistant, GS-6, at the VA Regional
Office in Columbia, South Carolina.

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.
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On October 20, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (African-American), national origin (Haitian),
age (over 40), and in reprisal for prior EEO activity when:

on July 8, 2016, he was notified that he was not considered for the position of Veterans
Service Representative, advertised under Vacancy Announcement Number 1650982,
because his application was incomplete.

After an investigation of the complaint, Complainant was provided a copy of the investigative file,
and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed
a Motion for a Decision Without a Hearing. On August 30, 2018, the AJ issued a decision by
summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

A copy of Complainant’s application package indicated that he completed an Occupational
Questionnaire for his application. The AJ noted that a screen shot of Complainant’s application,
as submitted in the Federal Government’s USAJobs website, indicated that Complainant faxed in
several documents, but that he did not submit the required assessment.

The job announcement for the Veterans Service Representative specifics as follows “Incomplete
application packages will receive a rate of IFM (ineligible due to missing forms). An incomplete
response or no response to the occupational questionnaire will also render an application package
incomplete. Request for reconsideration cannot be considered for applicants who fail to submit a
complete application package, or for reasons of incomplete software, fax transmission, etc.”

The record indicated that Complainant’s application questionnaire was missing from his
application package for the Veterans Service Representative position. The USA Staffing office
determined that Complainant’s application was incomplete. Consequently, he was not considered
as an applicant for the subject position.

Complainant alleged that another applicant, a female applicant, was allowed to “complete” what
he believe was an “incomplete” application by submitting documentation of her Knowledge, Skills
and Abilities (KSAs) after the close of the subject job announcement. The evidence in the record
indicated tat the female applicant submitted her KSAs once she was referred for the subject
position while Complainant was never referred because it was determined by USA Staffing office
that his application was incomplete and he was not considered an applicant for the subject position.

The Human Resources (HR) Specialist (black, year of birth 1983, unknown national origin/prior
protected activity) stated that his role was “to rate all applicants minimally qualified or not
qualified for the position.” The HR Specialist explained that Complainant was not notified that
his application was received because “the system sends out notifications once the assessment is
received. His assessment was missing, so he did not receive a notification.” The HR Specialist
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stated that if Complainant “would have submitted an assessment, I would have reviewed his
application like the other thirty-six applicants.”

The HR Liaison (Caucasian, American, year of birth 1976, unknown prior protected activity)
stated that her involvement in the selection process was to review the vacancy recruitment request,
set up, and instruct the promotional panel, oversee the Columbia HR office’s process of tracking
and coordinating necessary work for the subject vacancy announcement, assist in answering
correspondence from applicants on non-referral and non-selection, and assist name HR Specialist
in answering employee or managerial questions.

The HR Liaison stated that during the relevant period, she contacted the Jackson HR Center located
in Jackson, Mississippi (Jackson HRC) concerning Complainant and “received this response:
‘Only applicants receive notices. [Complainant] did not receive a notice of receipt of disposition
because his application was not complete. Since his application was missing the assessment, the
system did not consider him an applicant.”

Complainant asserted that he applied for the subject position and submitted all necessary
documentation via fax to be referred for consideration. However, the HR Liaison stated “not
exactly.” Specifically, the HR Liaison explained that Complainant submitted his documents “but
not all documents were received by the USA Staffing office. Since a completed application wasn’t
received, his name was not referred for consideration.”

Furthermore, the HR Liaison stated that since Complainant’s name was not on the list for
consideration, the HRC “conducted research and found his completed package had not been
received. At that time, we informed the applicant that the completed package had not been
received, so his name had not been referred for consideration.”

The HR Liaison stated while she was aware of Complainant’s race, national origin and age, she
was not aware of his prior protected activity. Moreover, the HR Liaison stated that she did not
discriminate against Complainant based on his race, national origin, age, and prior protected
activity.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established.

The Agency issued its final order adopting the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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
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rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the non-selections.
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were
a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.

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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).

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.

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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

March 14, 2019
Date