Tuan P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 26, 20190120180209 (E.E.O.C. Apr. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tuan P.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180209 Agency No. 200P-0345-2016104413 DECISION 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 20, 2017 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was a non-employee applicant for the position of Legal Administrative Specialist (LAS) pursuant to two vacancy announcements. On September 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (HIV positive), age (58), and in reprisal for prior protected EEO activity when: (A) on July 11, 2016, he was not selected for the open recruitment position of LAS under vacancy announcement number 345-16-1018- DFT16265470BUOCA (LAS1); and (B) on January 5, 2017, he learned he was not selected for the position of LAS under vacancy announcement number 345-17-02-DF1843704 BU (LAS2). 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. 0120180209 2 After 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. In accordance with Complainant’s request, 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. The instant appeal followed. FACTUAL BACKGROUND Claim A The record shows that LAS1 opened on February 25, 2016 and closed on December 16, 2016. The record shows that Complainant applied for the position through USA Jobs and was found to meet the minimal qualifications. Complainant and the selecting official (SO) stated that his qualifications included the following: Complainant has 30+ years of executive level management job experience and a Masters’ Certificate Degree, a post-Baccalaureate Certificate and a Bachelors’ Degree (Business & Government Studies, Paralegal Studies and Human Resource Management, respectively) each with superior academic achievement. In addition, he has completed 22 hours of a 30-hour Masters’ Degree in Legal Studies at the Arizona State University Sandra Day O'Connor Law School. The above qualifications were detailed and transcripts provided as part of his application. On April 11, 2016, the Agency issued a Non-Competitive Candidate Referral List on which Complainant was listed as Schedule A Reinstatement eligible. The Referral List contained the following instructions: The individuals listed have indicated they are eligible for a noncompetitive appointment to this position. The responsible agency official must verify an individual's noncompetitive eligibility prior to selection. The candidates listed below have not been evaluated under Merit Promotion Program procedures and may be noncompetitively selected for this position. Please indicate the action taken for each name by marking "S” for selected or "NS" for not selected. The Referral List indicated that selecting officials returned the list with completed selection decisions on May 9, 2016. The record indicates that 32 applicants were selected to fill the positions under that announcement. Of the 32 selectees, 22 of them were 40 years of age or older. The Agency’s system of records does not provide information on an employee's individually identifiable disability status. Complainant received an email informing him that he was not selected for the LAS1, GS-7 position. 0120180209 3 Claim B The record indicates that the LAS2 vacancy announcement opened on November 15, 2016 and closed on November 21, 2016. The position was available to the same categories of applicants as set forth in the LAS1 announcement. Complainant applied for this position. On December 2, 2016, Complainant received an email from the VA National Call Center located in Phoenix, Arizona requesting that he provide responses to the Knowledge, Skills, and Abilities (KSAs) section of the application. The message essentially asked Complainant to provide information demonstrating his ability: to interpret and search out information; to communicate orally; to prepare correspondence from standard letters and phrases; to work under stressful conditions; and to complete tasks thoroughly and with attention to detail. The email further stated that all KSA responses needed to be received by 7:00 a.m. on December 7, 2016, and that failure to meet that deadline would result in his application being removed from further consideration. The record shows that Complainant gave the following response via e-mail, sent at 8:33 a.m. on December 7, 2016: I have advanced education in conducting research utilizing a variety of research database programs. In addition to education, my working career has provided increasing levels of responsibility and opportunity to communicate in writing and orally with all levels of the organization; always with a focus on detail and accuracy. The record also indicates that Complainant contested management's determination that his emailed KSA submission was untimely. However, a human resources subject matter expert (SME) stated that she responded to the Office of Resolution Management as follows: On page one of the attached report, I underlined (in red) the date and time shown as first received by a VA server, which also shows receipt after the deadline for response was due. As also shown on the report, there are several VA servers which our emails go through before we receive them in our emails, but all are received after the deadline due. Please note that the time shown is 07:33:01 and shown as - 0800 (difference in UTC time). The times shown as received by all other VA servers after first VA server are listed as being received at 10:33:02 and shorter after and shown as -0500 (difference in UTC time). Both the -0800 and -0500 times would convert to being received at 08:33 AM Phoenix Time. On page two of the attached report, I underlined the date and time verifying that Complainant's email was sent at 15:32:53 +0000, which refers to Greenwich Time Zone. The record shows that Complainant received notification from the Denver HR Center that he was not selected for the position and that selecting office reported that he had failed to reply to their inquiry. The record also contains a Non-Priority Referral Candidates list, dated February 9, 2017, indicating Complainant's status as "FR" (Failed to Reply). 0120180209 4 In addition, SO explained that anyone who did not reply to the email request for KSAs by the required due date and time, including Complainant, did not receive further consideration. The record indicates that 18 applicants were selected for the position, and that 11 of the selectees, or 61% were 40 years of age or older. The Agency’s system of records does not provide information on an employee's individually identifiable disability status. CONTENTIONS ON APPEAL On appeal, Complainant contends that the final decision relied up on inconsistent statements from management officials and hearsay. Complainant argues that his rebuttal statement regarding the timeliness of his KSA submission for LAS2 was ignored. Additionally, Complainant contends that the presentation of the selection documents and the lengthy description was clearly a smokescreen and of little merit. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim) (quoting Burdine, 450 U.S. 243, 253). 0120180209 5 Assuming, without deciding, that Complainant has established a prima facie case on each basis, we find that Complainant has failed to establish that the Agency’s articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position in each claim is a pretext or that the responsible management officials were motivated by discriminatory or retaliatory animus. SO, explains that Complainant did not receive further consideration in the LAS1 selection process due to his prior negative LAS employment history at the Phoenix National Call Center. The SO cites documentation of Complainant's abrupt resignation on September 3, 2015, as the reason for not giving Complainant further consideration. SO, explains that Complainant had reportedly entered his supervisor's office and stated, “Tm done, I quit,” and then left his supervisor's office. The record contains a Report of General Information by Complainant’s former LAS supervisor who described the events of September 3, 2015. The report states as follows: On September 3, 2015 at approximately 9:30 am, I was approached by Legal Administrative Specialist [Complainant]. [Complainant] requested time to meet with his Union Representative, [UR] in reference to Excluded time that had been denied by my Assistant [CST]. I granted the requested Union time. [Complainant] and [UR] met at 10:00 a.m. At approximately 10:15 [Complainant] and [UR] returned to my office. [UR] stated that [CST] had disapproved several requests for excluded time for special care calls that lasted longer than 30 minutes because they were not submitted in a timely manner. [UR] stated that there had been technical issues with the system used to request exclusions, and that we were holding [Complainant] accountable for things out of his control. [Complainant] then asked me what I was going to do about it. I stated that I was going to look into the matter. [Complainant] again asked me what I was going to do about it. I stated that I was going to finish what I was doing and look into the matter. [Complainant] seemed to get frustrated and stated that he was going to take annual leave and that [UR] could call him once I had made a decision. He did not have leave scheduled. I asked him if he had any leave on the books and told him that I needed to check availability. [Complainant] stated that there was no use and that I (his coach) had already made up my mind. [Complainant] placed his PIV card on my desk and stated "I'm done, I quit" and walked out of my office. He went to his desk and got his bags and name plaque and stated that we could send him the rest of the items in his desk and left the call center. According to Complainant, management retaliated against him for initially engaging in protected activity in response to an earlier claim of constructive discharge related to his September 3, 2015 resignation. However, aside from Complainant’s bare assertions, the record is devoid of evidence to support his constructive discharge claim or the contention that management engaged in efforts to prevent Complainant from returning to the Agency.2 2 We note that SO was not in Complainant’s prior chain of command. 0120180209 6 The record also shows that all applicants for the LAS2 vacancy received an e-mail from the VA National Call Center located in Phoenix, Arizona requesting responses to the Knowledge, Skills, and Abilities (KSAs) section of the application by 7:00am on December 7, 2016. In addition, the record shows that every applicant that failed to meet this deadline was removed from further consideration. We also note that the record is devoid of evidence that the management officials responsible for removing Complainant from further consideration were aware of his protected classifications. At all times, the burden of persuasion lies with Complainant to show that it was discriminatory or retaliatory animus that motivated the Agency. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983). Here, aside from Complainant’s bare, unsupported assertions, the record is devoid of evidence of discriminatory/retaliatory animus on the part of any management official. Accordingly, we find that Complainant has failed to demonstrate that he was subjected to discrimination or reprisal as alleged. 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 decision. 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). 0120180209 7 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. 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 0120180209 8 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 April 26, 2019 Date Copy with citationCopy as parenthetical citation