Stacey R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 15, 2020

2019004109 (E.E.O.C. Jan. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacey R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019004109 Hearing No. 510-2017-00465X Agency No. 200I-0548-2017101332 and 200I-0548-2017102177 DECISION On April 29, 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 March 21, 2019, final order concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 this complaint, Complainant worked as a Food Service Worker, WG-2, at the Agency’s West Palm Beach VA Medical Center facility in Riviera Beach, Florida. On February 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (mental), age, and reprisal for prior protected EEO activity when, on January 6, 2017, he received notification that he was not 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. 2019004109 2 referred for the position of Secretary in Nutrition and Food Department. On March 14, 2017, he filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex, age, and disability when, on February 2, 2017, he was notified of his non-selection for the position of Medical Support Assistant, GS-7. The Agency accepted each complaint and conducted an investigation addressing both complaints, which produced the following pertinent facts: The Agency’s standard hiring process contained two separate actions which are referral, which is conducted by Human Resources (HR), and selection, which is conducted by the service. Once a vacancy closed, an HR specialist would review the resumes and other documents provided by applicants to see if they met the qualifications for the position. If an applicant met the qualifications, the HR specialist would forward his or her information to the hiring manager for review; if not, they were considered disqualified and not referred. With respect to the Secretary position, management explained that, according to the Agency’s qualification standards, a qualified applicant was to have at least one year of experience at the GS-5 level and there was no educational substitution for the GS-6 level. There was a typing proficiency requirement of 40 words per minute. Complainant attested that he was told his application for the position of Secretary in the Nutrition and Food Department was not accepted because it did not support the level of specialized/specific experience required for the position. He believed that the experience needed for the position was a secretary job with the major portion working as a timekeeper and that he had such experience reflected on his resume. He also attested that, in comparison to the selectee, he had a higher level of educational attainment and many years of hospital administration experience, including three years of “Nutrition on Food Service” at three Agency facilities. He also attested that he indicated that he could type 40 words per minute. Management and explained that the resume Complainant provided did not reflect the one year of specialized experience at the lower, GS-5, level, which was a time-in-grade requirement. Three HR specialists reviewed Complainant’s resume and determined he was not qualified because the resume he provided did not show the requisite one year of specialized experience at the lower, GS-5, level. Management attested that, when Complainant filed the instant complaint, he was informed as to the reason that he was not referred, and he was told that he needed to be more detailed on his resume to include his typing speed when applying for a secretarial position. Management also attested that Complainant did not dispute that he was not qualified. The vacancy announcement for the Secretary position at issue indicates that the position is a GS- 6 grade level; the time-in-grade requirement is one year at a GS-5 grade level; there is requisite specialized experience and no education substitution; and a typing speed of 40 words per minute is required. 2019004109 3 With respect to the Medical Support Assistant position, Complainant attested that a Schedule A letter was included in his job application package. He believed he was an outstanding candidate due to his many years of hospital administration and supervisory experience. Management explained that there were “KSAs”, indications of the knowledge, skills and abilities needed for the Medical Support Assistant position and Complainant’s application neither addressed these basic requirements not did his prior work experience indicate he met them. Specifically, there was nothing on Complainant’s resume to indicate he had any medical terminology knowledge or the ability to make appointments in a clinical setting, which were 2 of the stated KSAs. Management further explained that, prior to selection for interviews, applicants’ resumes were scored, and Complainant received 20 out of 30 points. A score of 24 was required to receive an interview. Complainant’s Schedule A document was not considered in rating his resume, as the rating was based on KSAs only. The Application and Resume Scoring form for the Medical Support Assistant position indicates that applicants with a score of 80% (24 out of 30) or higher on the resume will be offered an interview; KSA 2 is knowledge of basic medical terminology and KSA 3 is the ability to make appointments in a clinical setting; and Complainant received a score of 20 out of 30. 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 case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on March 7, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. In response, the Agency argues that the AJ properly determined that Complainant failed to demonstrate that he was subjected to discrimination when he was not selected for the positions at issue and requests that we affirm its final decision. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 2019004109 4 The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. While Complainant has filed this appeal, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Complainant has alleged that the Agency treated him disparately in not selecting him for each of two positions - a Secretary position and a Medical Support Assistant position. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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; Furnco Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that, with respect to the Secretary position, Complainant did not meet the time-in-grade requirement of one year at the GS-5 level. With respect to the Medical Support Assistant position, the Agency explained that Complainant’s resume was not rated highly enough, in consideration of the KSAs of the position, to qualify him for an interview. Although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. 2019004109 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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). 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. 2019004109 6 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 January 15, 2020 Date