0120102730
05-24-2012
Tarol G. Perrine, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tarol G. Perrine,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102730
Hearing No. 510-2009-00275X
Agency No. 200I-0573-2008100148
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 17, 2010 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. For the following reasons the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. Complainant had previously worked as a Social Worker with the Agency from October 1998 to July 2006. On July 18, 2006, the Agency terminated Complainant. In settlement of a Merit Systems Protection Board (MSPB) appeal, the Agency agreed to change the termination to a resignation in Complainant's personnel file. Before his termination, Complainant applied for disability retirement; however, the Office of Personnel Management denied Complainant's application. Beginning in September 2007, Complainant applied for numerous positions with the Agency but was not selected.
On October 18, 2007 (and amended on March 11, 2009), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity when:
1. On or about September 27, 2007, he was not selected for the position of Social Worker (Jacksonville Outpatient Clinic) under Vacancy Announcement No. 07-577-LW;
2. On or about October 3, 2007, he was not selected for the position of Social Worker (Lake City Division) under Vacancy Announcement No. 07-630-JK;
3. On or about November 8, 2007, he was not selected for the position of Social Worker (Psychological Residential Rehabilitation Treatment Program) under Vacancy Announcement No. 08-582-BB;
4. On or about January 7, 2009, he was not selected for the position of Social Worker, (Suicide Prevention) under Vacancy Announcement No. 08-603-BB;
5. On or about February 27, 2009, he was not selected for the position of Social Worker (Substance Abuse Treatment Team) under Vacancy Announcement No. 08-382-SH;
6. On or about February 27, 2009, he was not selected for the position of Social Worker (Suicide Prevention Coordinator) under Vacancy Announcement No. 08-605-BB; and
7. On or about February 27, 2009, he was not selected for the position of Social Worker (Jacksonville Outpatient Clinic) under Vacancy Announcement No. 08-656-KT.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on February 17, 2010 and issued a decision on April 23, 2010.
In her decision, the AJ determined that Complainant had established a prima facie case of disability discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for each selection. Complainant had not worked in the social work field for almost a year at the time of application for the positions at issue. The AJ determined that the Agency desired to hire those with current experience, particularly in the mental health field, especially given the specialized nature of the positions at issue. Specifically, as to the position in claim (1), the selecting official testified that the selectee had worked for the Agency for three years and possessed the most specialized experience. Further, the selectee had a background in administration and had worked well in the position prior to selection.
Regarding the position in claim (2), the selecting official selected two applicants for the position based on their current and extensive working experience in mental health positions. The selecting official noted that Complainant's application materials indicated that he was not working in a mental health position at the time of application.
As to the position in claims (4), the selecting official testified that she selected the selectee because she had demonstrated the required skills while completing her internship in psychiatric social work and had performed well academically. As to the position in claim (6), the selecting official testified that she selected the selectee because she possessed immediate mental health experience. By contrast, the selecting official noted that Complainant's experience was based on the medical aspects (i.e. home health, knowledge of community resources specific to referral to services) of social work.
Regarding the positions in claims (5) and (7), the AJ determined that neither side presented any evidence that Complainant applied for the positions at issue. Finally, as to the position in claim (3), the AJ found that Complainant acknowledged that he was not better qualified that the selectee.
The AJ concluded that Complainant had presented no evidence establishing that the Agency's reasons for his non-selections were a pretext for unlawful discrimination. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency breached the terms of the MSPB settlement agreement to place him in a negative light. Complainant alleges that the AJ showed bias towards the Agency and erred in accepting the selection officials' testimony that they were looking to hire candidates currently working in the field. Additionally, Complainant argues that the AJ erred in not allowing one of his requested witnesses to testify at the hearing. Finally, Complainant contends that the AJ erred in finding that he was not more qualified than the selectees. Accordingly, Complainant requests that the Commission reverse the final order.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
Initially, the Commission shall address Complainant's objections to the manner in which the AJ conducted the hearing. Specifically, Complainant contends that the AJ exhibited bias by disallowing a witness to testify and accepting the Agency's use of information from the MSPB settlement agreement. The Commission notes that EEOC regulations and Commission precedent provide AJ's with broad discretion in the conduct of a hearing. See 29 C.F.R. � 1614.109: see also EEO MD-110, at 9-10. Further, the MSPB has proper jurisdiction over any MSPB settlement agreement breach allegations, not the Commission. Leone v. Dep't of the Navy, EEOC Appeal No. 01A01573 (May 22, 2000); Carlo v. U.S. Postal Serv., EEOC Request No. 05940759 (May 4, 1995). The Commission has reviewed the hearing transcript as well as other documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, the Commission applies the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, Complainant must then demonstrate by a preponderance of the evidence that the Agency's proffered reason is a pretext for disability discrimination. Id.
The Commission notes that portions of this complaint arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because part of Complainant's complaint occurred in 2007, the Commission acknowledges that the AJ appropriately used the analytical framework as it existed before and after the enactment of the ADA Amendments Act of 2008 to determine whether Complainant is an individual with a disability.
Additionally, Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Upon a review of the record, the Commission finds that the AJ's finding of no discrimination and reprisal is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as set forth above. Specifically, Complainant was not selected for the position in claim (1) because the selectee had more specialized experience closely related to the position. Hr'g Tr., 111-12. Further, the selectee had already been performing well in the position and was ready to assume the responsibilities without much orientation. Id. at 121. Regarding the position in claim (2), the selectees were selected because they had extensive mental health experience and were already working in similar mental health positions as the position at issue. Id. at 141. Complainant had a fair amount of experience; however, the selecting official testified that the selectees had the particular experience of working with military and veterans in their mental health positions. Id.
As to the position in claim (3), the record establishes, and Complainant conceded, that the selectee was more qualified for the position. Hr'g Tr., at 80. Regarding the position in claim (4), the selecting official testified that the selectee was better qualified because she had been working with a very complex mental health population in the Post-Traumatic Stress Disorder Program and she had exhibited great skills in being able to connect with the staff and patients. Id. at 168. In regard to claim (6), the selecting official testified that the selectee had more immediate mental health experience than Complainant. Id. at 164. Additionally, the selectee's experience was more closely related to the position, which required program management skills, administering new policies, and developing the suicide prevention program. Id. at 164-65. Finally, as to the positions in claims (5) and (7), there was no evidence that Complainant had applied for the positions.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As to her non-selection claim, one way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to her non-selection claim.
The Commission finds that the AJ's determination that Complainant failed to establish pretext is supported by substantial evidence in the record. The Commission notes that an employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Here, the weight of the evidence reveals that the Agency chose the selectees because it believed they were better qualified and would be better equipped to meet the Agency's needs. The record and facts gleaned at the hearing fail to produce any evidence purporting to show that the Agency's actions were pretext for discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant failed to show that the Agency discriminated or retaliated against him as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 24, 2012
Date
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0120102730
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102730