0120102869
09-29-2010
Clarence Yarbough, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Clarence Yarbough,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102869
Hearing No. 560-2009-00066X
Agency No. 200L-0351-2008101580
DECISION
On June 28, 2010, Complainant filed a timely appeal from the Agency's May 28, 2010, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the reasons below, the Commission AFFIRMS the Agency's Final Order.
ISSUES PRESENTED
The issue raised in this appeal is whether the EEOC Administrative Judge's (AJ's) decision is supported by substantial evidence of record.
BACKGROUND
On May 8, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), and in reprisal for prior protected EEO activity when, on January 28, 2008, Complainant was not selected for hire as a Veterans Claims Examiner-Education, GS-0996-5 (Target 7), Vacancy Announcement #394-08-351-12-60 USAJ (VA). Following an investigation, Complainant requested a hearing before an AJ. On July 29, 2009, the Agency filed Agency's Motion for Summary Judgment/Decision without a Hearing. The AJ denied the Motion, and, on August 28, 2009, she conducted a hearing. 1 On May 24, 2010, the AJ issued a decision finding that the Agency did not discriminate against Complainant as alleged.
Sometime prior to the events herein, senior managers in the Education Division of the Veterans Benefits Administration (VBA) converted the Muskogee, Oklahoma Regional Processing Office into a nationwide call center for education. The Agency required additional staff and advertised the vacancies. Those who met the basic qualifications were referred for consideration for selection. The Assistant Education Officer at the Muskogee VBA, who also supervised the call center, served as the recommending official (RO). Complainant applied for the position at issue, met the minimum qualifications, and was referred for selection, but was not selected.
The AJ accepted the Agency's reasons for its selection decision and found that, even assuming Complainant established a prima facie case on any of his alleged bases, he did not demonstrate that the Agency's explanation of its hiring process was pretext. She also found that Complainant did not establish he had engaged in EEO activity prior to his non-selection, and that he did not present evidence that the selectees did not have higher scores in the rating process, that the selectees were not more qualified, or that the Agency singled him out and treated him less favorably than other candidates in the same situation with the same score.
CONTENTIONS ON APPEAL
In his appeal statement, 2 submitted with his Notice of Appeal, Complainant states that the RO and the selecting official (SO) had "improper motives"; that they did not follow the "Office of Personnel Management's (OPM) hiring process model"; that when he was not selected, he "knew" the RO discriminated against him; that the Agency should have chosen all five African-American candidates to achieve true diversity; and he sees "discrepancies" in the testimony by the RO and SO. He also informed the RO that he was currently working at the hospital on a temporary appointment and needed a new job.
The Agency sets out the standard of the Commission's review following a hearing, i.e., that post-hearing factual findings by the AJ will be upheld if supported by substantial evidence in the record. It stated that out of 36 selectees, 18 were male and 18 were female, that it selected three of the five African-American candidates. In addition, the Agency questioned whether Complainant had prior EEO activity. In closing, the Agency asserted that the hiring process was proper and, even if it was not, all candidates were affected in the same manner.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Legal Framework - Disparate Treatment
In this complaint, Complainant alleged that the Agency discriminated against him because of his race, sex, and in reprisal.3 Analysis of disparate treatment claims of discrimination is patterned after the three-step scheme announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Once the Complainant has established a prima facie case, the Agency is required to articulate a legitimate, nondiscriminatory reason for its actions.4 To prevail, Complainant must demonstrate, by a preponderance of the evidence, that the Agency's reason(s) for its action was a pretext for discrimination, i.e., that the Agency's reason was not its real reason and that it acted on the basis of discriminatory animus. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant's initial burden to establish a prima facie case of discrimination may be passed over where the Agency articulates legitimate, nondiscriminatory reasons for its actions. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Findings
We find that the Agency carried its burden to articulate legitimate, nondiscriminatory reasons for its actions. Specifically, the RO described the process that she used. She assessed all candidates referred for consideration from several certification lists according to an established protocol: she used several methods to evaluate each candidate, including interviews with preset questions, assessment of each one's speaking and writing skills, and she considered other factors, such as their recent work and/or education history. The written protocol also set out her expectations for each question and skill assessed. The RO provided her tally sheet of all candidates to the SO, and the SO chose 36 selectees. The SO selected the candidates in order of their scores where possible,5 and all selectees were ranked substantially higher than Complainant. The record contains the underlying documents in support of the testimony of the RO and SO.
At the hearing, the RO explained how she evaluated each candidate.6 She accounted to Complainant how she reached his score of 16, made up of 13 points (out of a possible 23) for the interview and three points (out of three) for his writing and grammar skills. We find that the RO explained to Complainant the specific reasons for his score in sufficient detail to frame the factual issue "with sufficient clarity so that [Complainant] will have a full and fair opportunity to demonstrate pretext." Burdine, 450 US at 253.
At this point, our inquiry moves to consideration of whether Complainant demonstrated pretext, and, in the final step of the McDonnell Douglas scheme, Complainant bears the ultimate burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason(s) was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward him because of his race, sex, or prior EEO activity. Upon review, we concur with the AJ's determination that Complainant failed to provide any evidence of pretext. Furthermore, we find that the record is devoid of any evidence that the Agency's actions were motivated by discriminatory animus. Complainant's contentions, as more fully described in the AJ's decision, are mere speculation and are not evidence of pretext. Accordingly, we find that the AJ's decision finding no discrimination is supported by substantial evidence of record.
CONCLUSION
After a review of the record in its entirety and consideration of all statements submitted on appeal, including those not specifically addressed, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's Final Order.
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
September 29, 2010
Date
1 We note that the front page of the hearing transcript (HT) states "Transcript of Hearing Held via Teleconference on August 28, 2009." However, orders issued by the AJ prior to the hearing indicate that the AJ was to participate by video-conference, while the transcript itself indicates that the parties were present together for the hearing. Accordingly, we conclude that the hearing was held by video-conference with the AJ, and not by telephone. The AJ is reminded that, pursuant to the Commission's decision in Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), while video-conference is permissible generally, there are certain factors an AJ should consider prior to a determination to proceed by video-conference. In the instant case, in the absence of any objection by the parties, we conclude that the AJ did not abuse her discretion by electing to hold a video-conference hearing.
2 Throughout this proceeding, Complainant asserted his rights as a veteran, contending that the Agency denied him veteran's rights. Veterans' preference or veteran status are not protected bases for filing an EEO complaint, and such claims belong elsewhere. See Ness v. USPS, EEOC Appeal No. 01981368 (November 21, 2000). In addition, the Veterans Readjustment Act places certain limitations on a Federal Agency's application of preferences and benefits.
3 Although the AJ noted that Complainant could not produce evidence or verify his claim of prior EEO activity, we will include reprisal in our analysis.
4 To establish a prima facie case of reprisal, a Complaint must show that: (1) Complainant engaged in a protected activity; (2) the acting Agency official(s) was aware of the protected activity; (3) subsequently, Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Coats v. EEOC, EEOC Appeal No. 0120044333 (May 17, 2007); see Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). See Section 8: Retaliation, EEOC Compliance Manual.
5 At times, merit staffing rules limited the SO's selection.
6 She testified that she looked for people who could express enthusiasm and caring over the telephone, with voices that express caring; people who would compassionate over the phone, are good listeners, and know how to summarize well. She emphasized that there was no one answer, but the candidate must demonstrate communication skills that are direct, demonstrate good customer service skills, and express carrying for others. In her view, Complainant's answers tended to be rather short, while others gave answers that met the criteria.
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0120102869
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102869