[Redacted], Stacey R., 1 Complainant,v.Denis R. McDonough, Secretary. Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

May 25, 2022

Appeal No. 2021000823 (E.E.O.C. May. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacey R.,1 Complainant, v. Denis R. McDonough, Secretary. Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2021000823 Hearing No. 470-2018-00283X Agency No. 200J-0768-2016104107 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was a retired Federal employee and an applicant for employment with the Agency’s National Cemetery Administration for positions in Lake Worth, Florida. Complainant was previously a GS-5 Human Resources Assistant with the Agency in Buffalo, New York. Complainant applied for a Cemetery Representative position advertised under Vacancy Announcement No. RP-16-TBE-1706273-924-BU (VA1). On June 15, 2016, Complainant received notice that he was ineligible for the position and that his application would not be considered any further. 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. 2021000823 2 Complainant emailed the Agency’s Human Resources Office notifying them that he was a Schedule A, 30 percent disabled veteran and requested to be referred for consideration. Later that same day, the Human Resources Specialist (HRS) emailed Complainant back informing him that the position was only open to “permanent employees of South Florida National Cemetery.” HRS also noted that the application Complainant submitted did not have a Schedule A Letter attached to it. Complainant provided a Schedule A Letter that was approximately nine years old. On June 17, 2016, HRS emailed Complainant back and informed him that the Agency had erred and he should have been referred for consideration for VA1 and provided him a priority consideration letter. Complainant responded that he would like to be considered for Vacancy Announcement No. RP-16-TBE-1731013-924-BU (VA2). Complainant provided an updated Schedule A Letter in his application for this position. Complainant was referred for consideration for VA2 but ultimately was not determined to be among the best qualified candidates for either position. On August 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (Traumatic Brain Injury with Brain Loss) when: 1. On June 15, 2016, he was not hired for the position of Cemetery Representative, GS-6, under Vacancy Announcement No. RP-16-TBE-1706273-924-BU (VA1); and 2. On June 15, 2016, he was not hired for the position of Cemetery Representative, GS-6, under Vacancy Announcement No. RP-16-TBE-1731013-924-BU (VA2). At the conclusion of the investigation, 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. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ found that the evidence of record, specifically the resumes for those identified as qualified candidates for the positions at issue, was clear that they all were internal candidates. Complainant was not a current Agency employee when he applied for the positions. The evidence of record reveals that the selectee for VA1 was a part-time Cemetery Representative for the Agency at the time she applied to and was hired for the position at issue. In addition, the best qualified candidates and eventual selectee for VA2 were considered and selected due to their superior qualifications and excellent customer service skills. The AJ concluded that Complainant failed to show that his qualifications were plainly superior to the selectees or that the Agency’s reasons for not selecting him were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2021000823 3 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 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). In order 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. Here, however, Complainant failed to establish such a dispute. We assume for purposes of our analysis that Complainant established a prima facie case of discrimination. The record showed that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The undisputed record shows that Complainant was not a current employee and that the selecting official only considered internal candidates for both positions. Based on their application materials and interviews, the selecting official believed that the internal candidates were better qualified. Complainant had not challenged the qualifications of those selected, nor suggested he was better qualified. We recognize that Complainant argues that the Agency could have selected him as a Schedule A applicant and that there was an initial error in the processing of his first application. Although Complainant disagreed with management’s perceptions and choices, he did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide sufficient evidence that the named management officials in this matter harbored discriminatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021000823 4 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. 2021000823 5 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). 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 May 25, 2022 Date