Shena O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 29, 2019

0120182403 (E.E.O.C. Oct. 29, 2019)

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

Shena O.,1
Complainant,

v.

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

Appeal No. 0120182403

Hearing No. 420-2016-00082X

Agency No. 2003-0520-2015100326

DECISION

On July 5, 2018, 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
June 5, 2018, final order concerning her equal employment opportunity (EEO) 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the Administrative Judge properly issued a decision without a
hearing, finding that there was no genuine issue of material fact that the Agency discriminated
against Complainant based on race or age when it did not interview her for the position of Inter-
Professional Fellowship Program, Social Worker.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Social Work Intern at the
Agency’s Gulf Coast Veterans Healthcare System in Biloxi, Mississippi. On January 9, 2015,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (African-American) and age (60) when, on July 18, 2014, she learned that she was
not interviewed for the position of Inter-Professional Fellowship Program, Social Worker. 2

Complainant applied for the Agency’s Inter-Professional Fellowship Program on May 7, 2014.
The Director of Postgraduate Training (Director), who designed the Program’s application and
interview process, instructed the Suicide Prevention Coordinator (Coordinator) to implement a
procedure for scoring applications and to appoint someone to perform the scoring. The
Coordinator asked a Social Work Supervisor (SWS) to rate the applications according to the
following factors: Cover Letter/Interests/Career Goals, Letters of Support (Academic and
Internship/Applied), Graduate School Transcripts, Research,3 Relevant Clinical Experience, and
Intangibles (including such factors as Awards/Honors, Degree in Related Field,
Community/Volunteer Service, Single Authorship Publication, Research Program Management
Experience, and Clinic Management Experience). Complainant received a total score of 26 points,
including three points for Letters of Support (Internship/Applied), zero points for Letters of
Support (Academic), and zero points for Research. Seven applicants received higher scores
(ranging from 45.5 to 26.5), one applicant also received a score of 26, and three applicants received
lower scores (ranging from 22 to 18.5).

A panel of three Social Workers interviewed the top four applicants, who had received scores of
45.5, 42.5, 35.5, and 35. The Agency offered the fellowship to the candidate who had the highest
post-interview ranking. That candidate declined the offer. The Agency then offered the position
to the second-ranked applicant, who accepted the offer. Complainant and the Coordinator stated
in their affidavits that the two candidates who received offers are Caucasian. According to
Complainant, the candidate who turned down the offer was 28 or 29 years old and the candidate
who accepted the offer was 44 or 45 years old.

On June 13, 2014, the Coordinator informed Complainant that she had not been selected to
interview for the position.

2 Although the Agency initially dismissed the complaint claiming Complainant did not contact an
EEO Counselor in a timely manner, the Commission reversed the dismissal and remanded the
complaint for further processing. See EEOC Appeal No. 0120151285 (July 21, 2015).

3 According to the rating form, scoring for the “Research” criterion was as follows: “0 = no
scholarly productivity, 2 = presentations or other evidence of research involvement, 4 = multiple
publications/presentations.”
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In her affidavit, Complainant asserted that her race and age were factors in the decision not to
interview her for the fellowship. She argued that officials interviewed “the young, white
candidates.” Complainant alleged, “They just decided,. . . because of my age and because of my
race, they weren’t even going to look at my application. They had somebody in mind, and that’s
what they did, they gave that to a young, white person .... They interviewed the. . . young, white
candidates.” Complainant maintained that she was qualified for the fellowship because she was
“working with the homeless population,” has a bachelor’s degree in social work and “a minor
degree in psychology,” has a master’s degree in social work, and knows how to do research. She
argued that she should have received a higher score in the “Research” factor because of an
undergraduate course that she had taken and should have received three points for “Letters of
Support (Academic)” because her application package included a letter from a college professor.4
She also argued that she should have received a higher score because she was more qualified than
the applicants who were selected for interviews. In addition, Complainant asserted that, if officials
had interviewed her, they would have learned that she “had a paper that’s published at the
University of Southern Mississippi.” She alleged that the “social worker climate is known to be
racist.”

The Director stated in his affidavit that the application-scoring “rubric was modeled after one used
to score other trainees at this facility, both the internship applications and other psychology
postdoctoral applications.” SWS stated in her affidavit that she had never met Complainant. She
also stated that Complainant “had not engaged in any research project or publications that met”
the “Research” criterion and that Complainant received credit for the Senior Social Worker’s
(SSW’s) letter under the “Internship/Applied” criterion because “this was the most recent role that
[Complainant] had engaged with him.” According to SWS, when a letter writer “had a dual role
with the applicant,” she rated the Letter of Support in light of the writer’s “newest role” with the
applicant.

In her rebuttal statement, Complainant argued that SWS did not rate her application packet fairly.
She contended that she “would have scored just as high as the top two applicants selected to be
interviewed” if her application had been judged fairly.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing and issued a decision without a hearing on May 14, 2018.

4 In a letter written on Agency letterhead, a Senior Social Worker stated that he “most recently
served as a Task Supervisor of” Complainant and had first met her when she was a student in a
master’s-level course that he taught at the University of Southern Mississippi. He praised
Complainant’s performances as a student and as an intern.
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In his decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for
not selecting Complainant for an interview. In that regard, the AJ noted that Complainant received
zero points in the “Research” criterion because her “application did not show that she had any
research experience as set forth in the application rating form.” The AJ further found that no
reasonable fact finder could conclude that the Agency’s reasons were a pretext for race or age
discrimination or that “Complainant’s qualifications were observably superior to the selectee’s
qualifications.” He noted that the selectee’s application listed her publications and that candidates
who had not listed publications received the same “Research” score that Complainant received.
He also noted that SWS, who screened the applications, had never met Complainant. Even if SWS
knew Complainant’s race and age, the AJ found no evidence of bias or discriminatory motivation.
Accordingly, the AJ found that there was no genuine issue of material fact that the Agency
discriminated against Complainant based on race or age.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant did not
prove that the Agency subjected her to discrimination as alleged. This appeal followed.

CONTENTIONS ON APPEAL

With her appeal, Complainant included a copy of the AJ’s decision and a letter that she sent to the
Agency’s Office of General Counsel. After the last page of the AJ’s decision (page 5, which
contains the Certificate of Service), there is a page that is illegible. In the letter, Complainant
stated that the illegible page was the last page of the AJ’s decision and argued that “it was just
another example of the lack of regard shown to [her] throughout these proceedings.” Complainant
also argued that the record contained evidence to support a finding of discrimination.

The Agency argues that the AJ properly granted the Agency’s Motion for Summary Judgment
because there were no genuine issues of material fact.

STANDARD OF REVIEW

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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated.

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See id. at Chapter 9, § VI.A. (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”).

ANALYSIS AND FINDINGS

Illegible Page

As a preliminary matter, we note that Complainant has stated that the last page of the AJ decision
that she received was illegible. The AJ decision in the record comprises five pages, including the
Certificate of Service. The documents that Complainant submitted on appeal include these five
pages, and all of them are legible. It is not clear why Complainant also received an illegible page,
or what the content of the page was. It is clear, however, that Complainant received the entire AJ
decision.

Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, a complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant objects to
the issuance of summary judgment and argues that the record contains evidence of discrimination.
Ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, for the reasons explained below, we find that the
AJ’s issuance of a decision without a hearing was appropriate.

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Disparate Treatment

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). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Corp. 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. 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).
Complainant can do this by showing that the proffered explanations are unworthy of credence or
that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A
showing that the employer’s articulated reasons are not credible permits, but does not compel, a
finding of discrimination. Hicks at 511.

We assume, for purposes of analysis only and without so finding, that Complainant has established
prima facie cases of discrimination based on race and age. The Agency has articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for an interview. Complainant, who
received an overall score of 26, was not among the top four candidates, whose scores ranged from
45.5 to 35.

Viewing the evidence in the light most favorable to Complainant, we find that there is no genuine
issue of material fact concerning whether the Agency’s articulated reasons were a pretext for
discrimination. Complainant has argued that she should have received a higher score in the
“Research” factor, but she has not shown that her application listed any publications. She also
argued that she should have received three points for “Letters of Support (Academic)” because her
application included a letter from her college professor (SSW). As the Social Work Supervisor
explained, however, Complainant received credit for Letters of Support (Internship/Applied)
because SSW’s most recent interaction with Complainant had been during her internship at the
Agency. Complainant has not shown that the Agency’s reasons are unworthy of credence.

Similarly, Complainant has not shown that discriminatory animus more likely motivated the
Agency’s actions. Her bare assertions that the Agency did not interview her for the fellowship
position because of her race and age are insufficient to establish pretext. Therefore, based upon
our review of the record and construing the evidence in the light most favorable to Complainant,
we agree with the AJ that Complainant has not presented evidence sufficient to raise a genuine
issue of material fact as to whether the Agency discriminated against Complainant based on race
or age when it did not interview her for the Inter-Professional Fellowship Program position.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that this case presented no genuine issues of material fact;
therefore, summary judgment was appropriate, and that Complainant has not established that the
Agency discriminated against her because of race or age. Accordingly, we AFFIRM the Agency’s
final order.

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).

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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

October 29, 2019
Date