0120093886
02-27-2012
Thomas M. McDermott, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Thomas M. McDermott,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093886
Agency No. 200H-0301-2008102674
DECISION
Complainant timely filed an appeal from the Agency’s August 25,
2009, final decision 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are 1) whether the Agency conducted a thorough and
impartial investigation and 2) whether the Agency properly found that
Complainant was not subjected to disability discrimination or reprisal
when it failed to select him for two Veterans Service Representative
(VSR) positions.
BACKGROUND
The record reveals that on March 22, 2007, Complainant applied for the
position of Veterans Service Representative (VSR), GS-07, under Vacancy
Announcement Number 301-07-04-EXT. Complainant was among ten veterans
deemed qualified by the Agency for the position. The Supervisory VSR
acted as the recommending official for this position. The Supervisory VSR
interviewed the candidates, including Complainant. After the interviews,
the Supervisory VSR reviewed the applications, assigned the candidates
scores, and ranked the candidates based on their scores. Complainant
ranked ninth amongst the applicants interviewed, and the Supervisory VSR
recommended the top three ranked applicants. The selecting official
agreed with the Supervisory VSR’s recommendations and chose the three
candidates with the three highest scores for the position. All three
selectees were disabled veterans.
With respect to the second VSR position, the record reveals that
Complainant applied for this position on March 11, 2008, and the Agency
deemed Complainant qualified for the position. The Recommending Official
stated that he and a Management Analyst reviewed applications sent by
Human Resources and determined the best qualified candidates based on
their resumes, applications, specialized experience, and responses
to questions about their knowledge, skills, and abilities (KSA).
The Recommending Official and Management Analyst individually ranked the
candidates, and then consulted with each other to assign the applicants
scores. Complainant received a score of 28.5. The candidates with
the four highest scores (43.5 points to 58.5 points) were interviewed,
but Complainant was not interviewed or selected. The selectee with
the highest total interview and application score was selected.
On May 28, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of disability and in
reprisal for prior protected EEO activity under the Rehabilitation
Act when:
1. The Agency failed to inform him of the status of his application
for the position of VSR (Vacancy Announcement Number 301-07-04EXT);1 and
2. On May 19, 2008, the Agency informed Complainant of his
non-selection for the position of VSR, S-7, Vacancy Announcement Number
VAN 301-08-09-EXT.
Final Agency Decision
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). When
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged. Specifically, the Agency determined that Complainant had not
shown that he is an individual with a disability or that the Agency’s
non-discriminatory explanations for its actions were pretext for unlawful
discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission vacate the
Agency’s final decision and remand his complaint to the Agency for
further investigation. Complainant contends that, prior to applying for
this position, he filed a discrimination complaint with the Department
of Labor that involved the Director of the Department of Labor’s
Veterans' Employment and Training Service Program (the Director).
Complainant contends that he wrote Senator Edward Kennedy about the
matter, which angered the Director, who vowed that Complainant would
never find a job if he continued to pursue his EEO complaints.
Complainant maintains that during the interview for the first VSR
position, he asked the Supervisory VSR a question about veterans’
coverage under the Americans with Disabilities Act (ADA), and the
Supervisory VSR became “openly hostile” toward Complainant and stated,
“"go ask Senator Edward Kennedy that question." Complainant maintains
that the Director knows the Supervisory VSR and informed the Supervisory
VSR of his EEO activity in an effort to prevent Complainant’s employment
in veterans’ services.
Complainant further maintains that the EEO investigator attempted to
discourage and dissuade him from pursing his claims by asking him if
he was sure he wanted to pursue his complaint and stating that the
remedy would likely be minimal. Complainant also maintains that the
investigator also opined that his claims could be dismissed if he was
not disabled and stated that complainants must have a “complaint in
the system” in order to have the right to file a retaliation complaint.
Further, Complainant contends that the transcript of his investigative
testimony contains errors, including a portion that quotes him as saying
that the interaction between the ADA and veterans disability was a
“great area,” although he actually said “grey area.” Complainant
also contends that another portion of the transcript quotes him as saying
that the second “evaluation process is being done directly,” although
he actually said the process was “done differently.” Additionally,
Complainant asserts that the investigator failed to include medical
records related to his cancer treatment and spine testing, although
Complainant informed the investigator that he had permission to access
these records from the Agency. Complainant contends that this error
caused the Agency to conclude that he is not an individual with a
disability. The Agency did not raise any argument on appeal.
STANDARD OF REVIEW
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
(MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (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
The Investigation
The Agency is required to “develop and impartial and appropriate
factual record … An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination
occurred.” 29 C.F.R. § 1614.108(b).
Complainant contends that the investigator was biased because the
investigator asked him if he was sure he wanted to pursue his complaint,
stated that the remedy would likely be minimal, opined that his claims
could be dismissed if he was not disabled, and stated that complainants
must have a “complaint in the system” in order to have the right
to file a retaliation complaint. Complainant also contends that the
investigator failed to fully explore the extent of the Director’s
relationship with the Agency officials involved in his non-selections.
Complainant further contends that the investigative report contains the
following errors:
1. The transcript of Complainant’s testimony does not reflect that
Complainant testified that his brother stated that the Director was like
“a bull in a china shop.”
2. The transcript lists a metal plate last in a list of assistive
devices Complainant used, although Complainant listed the metal plate
first during his testimony.
3. The transcript of Complainant’s investigative testimony quotes
Complainant as saying that the interaction between the ADA and veterans
disability was a “great area,” although he actually said “grey
area.” Complainant also contends that another portion of the
transcript quotes him as saying that the second evaluation process is
being “done directly,” although he actually said the process was
“done differently.”
Upon review, we note that the record reveals that the investigator asked
the Director about his communications with the selecting and recommending
officials for the non-selections, and the Director denied speaking to the
officials about Complainant’s prior EEO activity or any other matter.
Further, the recommending official for the first position stated that
he did not discuss Complainant with the Director, and the selecting
official stated that he had no conversations with the Director about
Complainant’s application. Likewise, for the second position, the
recommending official stated that he has never spoken to the Director,
and the selecting official stated that he did not talk to the Director
about Complainant’s application. All of the selecting and recommending
officials stated that they were not aware of Complainant’s prior EEO
activity. Thus, we find that the record contains sufficient evidence
regarding the Director’s influence on Complainant’s non-selections.
Additionally, we find that the record is adequately developed for a
fact-finder to determine whether discrimination occurred.
With respect to Complainant’s claim that the investigator made
inappropriate comments to him, we note that the Agency apologized
and acknowledged that the investigator may have made comments that
Complainant could have perceived as discouraging him from pursing his
complaint.2 The investigator must maintain the appearance of being
unbiased, objective, and thorough. Moreover, he must be neutral in his
approach to factual development. MD-110, at Chap. 6, § VI.C (Nov. 9,
1999). While the investigator should have refrained from evaluating
the merits or strength of Complainant’s complaint in order to avoid
perceptions of bias, there is no evidence that the investigator’s
comments had a negative impact on the investigation or inhibited
Complainant from pursuing his complaint. Moreover, the alleged comments
by the investigator reflect an imperfect attempt by the investigator to
apprise Complainant of the legal standards and expectations relevant
to his claims, not an attempt to deter Complainant from pursuing his
complaint. In fact, the investigative report accurately reflects the
claims and evidence at issue in this case and does not contain improper
legal conclusions. With respect to the alleged errors in the transcript,
we conclude that these minor transcription errors do not impact the merits
of Complainant’s complaint. Moreover, we have reviewed Complainant’s
complaint in light of Complainant’s assertions about the transcript.
Disparate Treatment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
For instance, to establish a prima facie case of reprisal, Complainant
must show that (1) he engaged in protected EEO 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 his
protected activity and the adverse treatment. Whitmire v. Dep’t of
the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once Complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reason(s) for its action was a
pretext for discrimination. At all times, Complainant retains the burden
of persuasion, and it is his obligation to show by a preponderance
of the evidence that the Agency acted on the basis of a prohibited
reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
For purposes of analysis, we assume that Complainant is a qualified
individual with a disability and established a prima facie case
of discrimination.3 Nonetheless, we find that the Agency provided
legitimate, non-discriminatory reasons for its actions. Specifically,
in an investigative affidavit, the selecting official for the first VSR
position stated that Complainant was not selected for position because
his interview responses were not as thorough as the selectees’ answers.
A Human Resources Specialist stated that the Agency mailed Complainant
a letter on July 10, 2007, that informed him of his non-selection for
the first VSR position.4
The recommending official stated that Complainant was not selected for the
second VSR position because his application consisted of one big paragraph
response to KSA questions and lacked organization. He further stated
that Complainant failed to answer some KSA questions. The Management
Analyst stated that Complainant was not selected for the second VSR
position because his KSA responses were not organized, confusing,
and did not completely answer the questions. The Management Analyst
further stated that Complainant’s KSA responses were contained in
only one long paragraph, whereas the other candidates answered the KSA
questions with pointed answers. The Management Analyst also stated that
Complainant’s application failed to show how he utilized his computer
and technical experience. He stated that the selectee was chosen because
he worked for a state agency that did similar work to the Agency, and
the selectee had relevant experience in computer systems and gathering
information. The Management Analyst stated that he has not spoken to
the Director about Complainant, and he signed off on the recommending
official’s recommendations.
In a non-selection case, pretext may be demonstrated in a number of ways,
including a showing that a complainant's qualifications are observably
superior to those of the selectee. See Bauer v. Bailor, 647 F.2d 1037,
1048 (10th Cir. 1981); Williams v. Dep’t of Education, EEOC Request
No. 05970561 (Aug. 6, 1998). Complainant maintains that he should have
been selected for the VSR positions because he has a Master’s Degree
in Administrative Studies, a Bachelor’s Degree in Social Sciences,
an Associate's Degree in Business Administration, and a certificate from
the Veterans Technical Training Institute in Computer Operations and as
an Office Specialist. Complainant further contends that he should have
been selected for the positions because he had experience as a Project
Manager, union president, and a yeoman for the United States Coast Guard.
However, while Complainant’s qualifications are impressive, we do
not find that they are observably superior to those of the selectees,
who also had impressive qualifications. In so finding, we note that
the selectee for the first position had a Bachelor’s Degree in
Sociology, an Associate’s Degree in Criminal Justice, and previously
worked as a Veterans Employment Representative. Another selectee
for the first position previously worked with the Agency as a Claims
Assistant, a Veterans Agent for Plymouth, Massachusetts, and Senior
Chemical Weapons Arms Control Inspector for the United States Army.
Moreover, this selectee had an Associate’s Degree in General Studies.
The third selectee for the first position previously worked for the
Agency as a Human Resource Specialist and Rehabilitation Technician
and had a Master’s Degree in Science and a Bachelor’s Degree in
Psychology. The selectee for the second position had a Bachelor’s
Degree in Philosophy, was a candidate for a Master’s Degree in Public
Administration, and worked as a Clerk for the Department of Education
and a Fare Media Custodian for the United States Coast Guard.
Moreover, the record confirms that Complainant’s KSA responses for
the second position consisted of one long disorganized paragraph,
whereas the selectee’s responses clearly answered each KSA question
individually. We note that an Agency has broad discretion to carry out
personnel decisions, such as selections and promotions, and should not
be second-guessed by the reviewing authority absent evidence of unlawful
motivation. Burdine, 450 U.S. at 259; Stiles v. Dep't of Transp., EEOC
Request No. 05910577 (June 27, 1991).
Finally, with respect to Complainant’s claim that the recommending
official made comments about Senator Kennedy during the interview for the
first position, we are not persuaded that the official made the comment
in reference to Complainant’s prior EEO activity. The recommending
official stated that he did not recall making any statement about Senator
Kennedy during the interview, but if a question arose about disability
benefits or the selection process that he could not answer, he would
tell applicants that they have the right to contact their congressman or
senators about any concerns or questions. We note that Complainant’s
prior EEO activity allegations were made against the Department of Labor,
whereas the actions of the Department of Veterans Affairs are at issue in
this complaint. Beyond Complainant's bare assertion that the Department
of Labor’s Director somehow divulged his previous EEO activity to
selecting/recommending officials at the Department of Veterans Affairs,
there is simply no evidence that the responsible management officials
in this case were aware of Complainant’s previous EEO activity.
Consequently, we find that the Agency properly found that Complainant
did not establish that he was subjected to unlawful discrimination
because Complainant failed to prove that the Agency's non-discriminatory
explanations for its actions were pretext for unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency’s final decision for the reasons set forth in this decision.
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 (November 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
February 27, 2012
Date
1 Although the Agency and Complainant characterized claim 1 as concerning
the Agency’s failure to notify Complainant of his non-selection for the
first VSR position, the investigation and final decision focused on the
reasons why Complainant was not selected for the position. Therefore,
likewise, we will analyze claim 1 as a de facto non-selection claim with
respect to the first VSR position.
2 The record reveals that in a letter from the Chief of the Office of
Resolution Management dated January 20, 2009, the Agency addressed
Complainant’s claim that he was dissatisfied with the processing
of his complaint. The letter concluded that the investigator thought
he was trying to provide Complainant with insight about his case, but
“his approach could be perceived as discouraging and we do apologize
for it.” The letter further stated that the investigator’s
supervisor was contacted and made aware of the Chief’s observations
and instructed to remind the investigator about this perception when
conducting investigations.
3 Because we assume that Complainant is an individual with a disability,
we decline to address Complainant’s allegation that the investigator
failed to obtain medical documentation in the Agency’s possession that
would have shown that he is disabled.
4 We note that the record contains a copy of a letter dated July 10,
2007, from the Human Resources Specialist to Complainant that states
that Complainant was not selected for the first VSR position.
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0120093886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093886