Andres M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

01-2014-0531-0500 (E.E.O.C. Oct. 2, 2015)

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

Andres M.,1
Complainant,

v.

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

Appeal No. 0120140531

Hearing No. 560-2013-00166X

Agency No. 2003-0686-2012103805

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s October 30, 2013 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patient
Representative at the Agency’s Dwight D. Eisenhower VA Medical Center in Leavenworth,
Kansas. On April 3, 2012, Complainant applied for a Supervisory Medical Administration
Specialist under Vacancy Announcement No. EA-EB-MPA-630211. Complainant was
determined to be qualified for the position, placed on the certificate of eligibles, and was
interviewed for the position by an interview panel. The interview panel asked each candidate
the same questions, and scored the candidates based on their interview responses and
knowledge, skills, and abilities (KSAs) provided in their applications. Complainant’s
cumulative score was the lowest of all six candidates interviewed. The selected candidate

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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(Selectee) was the top-ranked candidate. Complainant was subsequently notified that he was
not selected for the position.

On August 23, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of sex (male), religion (Christian), and age (69) when
on June 22, 2012, he was not selected for the position of Supervisory Medical Administration
Specialist, GS-11, under Vacancy Announcement No. EA-EB-MPA-12-630211.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted the Agency's motion for summary
judgment, and issued a decision on September 24, 2013.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and determined that the Agency had articulated legitimate, nondiscriminatory
reasons for not selecting Complainant. Specifically, Complainant was not selected for the
Supervisory Medical Administration Specialist position because he scored the lowest on both
elements of candidate evaluation. Further, the Agency confirmed that the Selectee was the best
qualified for the position.

In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued that because some of the interview panel members were only at the GS-9
grade level, they should not have been permitted to participate in a selection process for a
position graded higher than the positions they occupied. The AJ noted that, to the extent that
Complainant was arguing that the interview panel members were not qualified or competent to
make a selection recommendation, their alleged lack of qualifications or competency would
equally affect all candidates, regardless of their age, sex, or religion. The AJ determined that
Complainant therefore was treated no differently in the interview process than any other
candidate.

In addition, Complainant argued that the Selectee had an unfair advantage because she worked
as a supervisor with one of the interview panelists. The AJ found that even if the panelist
extended some type of preference to the Selectee because they had previously worked together,
every applicant was equally affected by this preference. Finally, Complainant contended that
he was the most qualified candidate based on his 30 years of supervisory experience, master’s
degree, and that he had previously made a recommendation to the head of the Agency. The AJ
concluded, however, that aside from Complainant’s bare assertions, Complainant failed to
offer any evidence establishing that his qualifications were observably superior to those of the
Selectee. The AJ determined that Complainant failed to establish that the Agency’s reasons for
not selecting him were pretext for unlawful discrimination. As a result, the AJ found that
Complainant had not been subjected to discrimination as alleged. The Agency subsequently
issued final order fully implementing the AJ’s decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the
Agency. Complainant contends that one interview panelists should have recused herself from
the panel as she had a conflict of interest. Further, Complainant argues that he was scored
lower than warranted based on his skillsets and responses to the questions. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

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 he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed and Complainant failed to present evidence to rebut the Agency's
legitimate, nondiscriminatory reasons for his non-selection for the position at issue. The
Selecting Official affirmed that she selected the Selectee because she was the highest-ranked
candidate by the interview panel. ROI, at 187. Interview panel members confirmed that they
ranked the Selectee as the best candidate based on her relevant supervisory experience and
education as demonstrated in her resume and interview responses. Id. at 129, 148. The
interview panel scored Complainant as the lowest-ranked candidate. ROI, Ex. C-13. While
the interview panelist members confirmed that Complainant was qualified, each panelist and
the Selecting Official affirmed that they believed the Selectee was better equipped to meet the
Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will
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not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of
Cmty. Affairs v. Burdine, 450 U.S. at 259.

In attempting to establish that the Agency’s reasons for its actions were pretext for unlawful
discrimination, Complainant argues that the Selectee was essentially pre-selected and had an
unfair advantage due to a prior working relationship. The Commission has consistently held
that employment decisions based on friendship or favoritism are not in violation of Title VII so
long as they are not also premised on some basis which is unlawful under Title VII. See
Logan v. Smithsonian Institution, EEOC Appeal No. 0120093827 (June 9, 2011); Goostree v.
State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986).

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that the record does not establish that Complainant's qualifications are observably
superior to those of the selectee. Beyond Complainant's bare assertions and subjective beliefs,
the Commission agrees with the AJ that there is no evidence in the record that Complainant's
protected bases played a role in the Agency’s selection for the position at issue or the selection
process. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination 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 Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
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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 (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 2, 2015
Date