[Redacted], Henry E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 2, 2022

Appeal No. 2022000008 (E.E.O.C. Nov. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000008 Agency No. 2004-0460-2021101512 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 29, 2021, finding no discrimination concerning 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent, GS-5, in Commodity Management, at the Veterans Affairs Medical Center in Wilmington, Delaware. On January 5, 2021, Complainant filed his complaint alleging discrimination based on disability and in reprisal for prior EEO activity2 when on December 22, 2020, he was not selected for the position of Inventory Specialist under vacancy announcement number CBSZ-10939531-21-KPS. 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. 2 We note that although Complainant also alleged whistleblowing reprisal, the Agency dismissed this portion of the retaliation claim, for failure to state a claim since whistleblowing activity is 2022000008 2 After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that he was a Schedule A employee and was missing three fingers on his left hand. The record indicates that in November 2020, Complainant applied for the Inventory Management Specialist, GS 7 - 9, position at issue. The Selecting Official (SO), who was also Complainant’s supervisor, for the position at issue convened an interview panel consisting of three managerial members, including the SO. The record indicates that the panel interviewed six candidates, including Complainant, asking the same eight questions related to the position at issue. After the interview, each candidate received a total score ranged from 99 to 72 (the highest to lowest: 99, 95, 88, 83, 75, and 72). The SO selected a selectee (SE), a 60% service-connected veteran, because she, a Supply Technician at the Agency, received the highest total interview score of 99. Complainant received a total interview score of 75. The interview panelists indicated that the SE interviewed very well answering all the interview questions thoroughly and completely. Complainant, however, performed very poorly and did not respond well to the questions. The panel also indicated that the SE’s resume reflected her experience and knowledge of her current duties that were transferrable skills to the job at issue. The Agency found no discrimination for Complainant’s nonselection as alleged. Complainant appealed from the Agency’s final decision. 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 (EEO MD-110), Chap. 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). not considered a protected activity under EEO laws. We agree with the Agency that the whistleblowing portion of the reprisal claim was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). 2022000008 3 Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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). 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. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, Complainant has not claimed that he was denied a reasonable accommodation for his disability. Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered legitimate, nondiscrimination reasons for his nonselection. The SO indicated that he selected the SE because she received the highest total interview score of 99. Complainant received the score of 75, fifth out of six candidates interviewed. We note that the record indicates that the SE’s responses to the interview questions appeared from the interview panelists’ notes to be more thorough than Complainant’s responses. Complainant claimed that he was more qualified than the SE because he had five degrees including a master’s degree, and he had been working at the Agency for seven years. Whereas, claimed Complainant, the SE did not have a degree (at the time of her application, she was expected to graduate from college in May 2021) and only had been with the Agency one year. We note that there is no indication that length of time of employment at the Agency and college and master’s degrees were required for the position at issue. Thus, we find that Complainant failed to show that his qualifications for the position were plainly superior to the SE’s qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Based on the foregoing, we find that the Agency did not discriminate against Complainant as alleged. 2022000008 4 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000008 5 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, 2022 Date