Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120120230 (E.E.O.C. May. 9, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120120230

Hearing No. 420-2010-00175X

Agency No. 200I-0005-2010101909

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 19, 2011 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’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 an Information
Technology (IT) Specialist at the Agency’s Office of Information and Technology Field Office
in Birmingham, Alabama. On April 7, 2010, Complainant filed a formal complaint alleging
that the Agency discriminated against him on the basis of race (African-American) when in
January 2010, he learned that he was not selected for the position of Supervisory IT Specialist
(Policy and Planning) under Vacancy Announcement No. OI&T-10-GW296204.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ granted the
Agency’s motion for summary judgment and issued a decision on September 9, 2011.

In the decision, the AJ determined that Complainant had established a prima facie case of race
discrimination and that the Agency had articulated legitimate, nondiscriminatory reasons for its
actions. More specifically, the selecting official (SO) and two division chiefs reviewed and
ranked the five candidates’ applications based on how well each candidate addressed the
0120120230

2
requirements outlined in the vacancy announcement. The panel did not conduct interviews.
The panel gave special consideration to any applicant’s knowledge and experience with the “IT
Tracker” process. SO affirmed that Complainant was rated second behind the selectee.
Complainant was ranked lower than the selectee by the panel because the selectee’s application
demonstrated her knowledge and experience with the IT Tracker process while Complainant’s
did not. As a result, SO selected the selectee.

The AJ concluded that Complainant failed to show that the Agency’s reasons for his non-
selection were pretextual. As a result, the Agency found that Complainant had not been
discriminated against as alleged. The Agency subsequently issued a final order adopting the
AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the reasons given by the Agency for his non-selection
are false and pretext for unlawful discrimination. Complainant argues that he was better
qualified than the selectee as he possessed extensive qualifications and training relating to IT
procurement and tracking. Further, Complainant alleges that the panel members and the
selectee have all been close friends for years. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The AJ’s Issuance of Summary Judgment

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). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and evidentiary standards that apply
to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is
not to weigh the evidence but rather to determine whether there are genuine issues for trial.
Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.
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.

When a party moves for summary judgment, such as the Agency did here, the non-moving
party's opposition must consist of more than bare assertions, general denials, conclusory
allegations or mere suspicion and must be supported by affidavits or other competent evidence
0120120230

3
setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477
U.S. at 324. The Commission finds that, even assuming all facts in his favor, a reasonable
fact finder could not find in Complainant’s favor, as explained below. Thus, the Commission
finds that the AJ's grant of summary judgment was appropriate.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Tx. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502 (1993).
In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s non-selection. Specifically, SO affirmed that he
and two division chiefs ranked the submitted applications based on how well each candidate
addressed the requirements outlined in the announcement. ROI, at 84. SO noted that
particular attention was given to any evident knowledge of and experience with the IT Tracker
process. Id. at 85. The panel agreed unanimously on the rankings of the top three candidates.
Id. at 84. SO stated that the selectee’s application clearly detailed her knowledge of the IT
Tracker Division, including extensive specific experience she acquired from her time as a staff
member in that Division. Id. at 86. Conversely, Complainant’s application did not show any
apparent experience with the IT Tracker approval process. Id. at 86. Additionally, panelists’
notes indicate that they all believed Complainant was well qualified; however, unlike the
selectee, he would not be ready to assume and perform the full responsibilities of the position.
Id. at 117-19. As a result, the selectee was ranked higher than Complainant and selected.

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.
One way Complainant can establish pretext is by showing that his 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 his
non-selection claim.

0120120230

4
A review of Complainant’s and the selectee’s applications does not reveal that Complainant's
qualifications for the position were plainly superior to those of the selectee. Complainant
claimed that he was better qualified than the selectee because he had extensive procurement,
acquisition, and tracking systems experience and many years of leadership training. The
record reveals that SO and the panelists reviewed applications with a particular interest in
demonstrated IT Tracker experience, which the selectee clearly listed in her application. On
the other hand, Complainant’s application did not directly reference the desired experience.
Complainant does not dispute the Agency’s explanation that it particularly valued demonstrated
IT Tracker experience for the position in question.

The Commission finds that the record establishes that SO and the panelists chose the selectee
because they believed that the selectee was better qualified and was ready to assume and
perform the full functions of the position immediately. 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.

Construing the evidence in the light most favorable to Complainant, the Commission finds that
the record is devoid of any evidence that the Agency's selection or the selection process was
tainted by discriminatory animus. At all times, the ultimate burden remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory animus. Complainant has
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that he was 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 Administrative Judge’s grant of summary judgment was
appropriate and a preponderance of the record evidence does not establish that discrimination
occurred.

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:

0120120230

5
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
0120120230

6
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 9, 2013
Date