Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity CommissionJul 29, 2014
0120122778 (E.E.O.C. Jul. 29, 2014)

0120122778

07-29-2014

Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.


Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs

(Veterans Health Administration),

Agency.

Appeal No. 0120122778

Agency No. 200J-0515-2011101238

DECISION

On June 25, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 23, 2012, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a temporary Motor Vehicle Operator at the Agency's Battle Creek Veterans Affairs Medical Center in Battle Creek, Michigan.

On March 30, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Jewish) and age (45) when on December 3, 2010, he was not referred by the Human Resource Management Service for selection to the position of Nursing Assistant/Motor Vehicle Driver, GS-621-5, vacancy announcement 515-10-617. This position was located in the same facility where Complainant worked.

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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.

Following the vacancy announcement, approximately 82 candidates applied for the position, and there were eight vacancies and selectees. Report of Investigation (ROI), 132, 156, 190 - 194. The Agency found that because management provided a legitimate non-discriminatory reason for its action, it could analyze whether there was discrimination without ruling on whether Complainant made out a prima facie case of discrimination.

The Agency found that Complainant was not referred to the selecting official because he did not meet the minimum specialized experience required of the position - one year, full time patient care equivalent to that of a Nursing Assistant Series, 0621, GS-4, or specified minimum education in a related field. The Agency went on to find Complainant did not show this reason was pretext to mask discrimination. In response to Complainant's contention that he was qualified because in reality the vacancies were for a driver job and not a nurse assistant, the Agency found that the issue was not whether its classification of the position was rational. Rather, the question was whether Complainant was disparately treated. It found that numerous applicants were not referred to the selecting official for the same reason as Complainant, including many who were younger than him and not Jewish.

In addition to arguments that the position was not properly classified, on appeal Complainant argues that he met the requirement of one year of specialized experience by directly caring for patients whom he transported while working as a Motor Vehicle Operator for the Agency. He disputes the assessment of the Human Resources Assistant that five comparative employees who she qualified and were later selected met the minimum one year of specialized Nursing Assistant experience. He also argues that one of the above five Comparison 1 (age 50) did not submit evidence that she had the type of driver's license required, a requirement for the job.

In opposition to the appeal, the Agency argues that the position as classified required both nursing assistant and driving skills. It disputes Complainant's assessment that the above five candidates did not meet the minimum specialized nursing assistant experience. In response to Complainant's argument that Comparison 1 did not submit evidence that she had the required driver's license type, the Agency argues that Complainant does not claim she did not have it.

ANALYSIS AND FINDINGS

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency explained that it did not refer Complainant to the selecting official because he did not meet the minimum requirement of the position that he have one year of specialized experience equivalent that that of a Nursing Assistant, GS-621-4, or the minimum specified education in a health related occupation.

In an effort to prove pretext, Complainant does not contend that he had the minimum specified education in a health related occupation. The Human Resources Assistant who evaluated Complainant's application explained in detail why she found he did not meet the specialized experience as a nursing assistant. Specifically, she explained that in his application papers Complainant indicated that (as a Motor Vehicle Operator) he drove patients from location to location and he assisted a nursing assistant and recreational therapists, none of which involved direct patient care where his primary duty was to provide patient care, as required. Our review of Complainant's application does not show that the Human Resources Assistant assessment thereof was pretext to mask discrimination. Moreover, after reviewing the applications of the above five comparative employees, we found nothing therein indicating that the Human Resources Assistant assessment that these applicants met the one year of specialized Nursing Assistant experience was pretext to mask discrimination. All contained descriptions or jobs titled which the Human Resources Assistant could assess as meeting the criteria.

The Human Resources Assistant indicated that all candidates which she referred provided evidence that they met the driving license requirement. ROI, 130. But the application packet in the record of Comparison 1 does not contain a statement that she met the driver license requirement or otherwise document that she did so. ROI, 632 - 648. Assuming that the record contains the complete application packet for Comparison 1, the weight of the evidence does not favor a finding of pretext. The Human Resources Assistant found that 53 of the 82 candidates did not have the minimum qualifications to be referred to the selecting official. ROI, 190 - 194. A chart in ROI summary indicates that 16 of them were 40 or under, significantly younger that Complainant. Moreover, Comparison 1 is significantly older than Complainant, and the Human Resources Assistant stated she was not aware of Complainant's religion at the relevant time. Further, the Human Resources Assistant gave persuasive reasons for why Complainant did not qualify. Given this, assuming Comparison 1 did not have the required driver's license type, we find the weight of the evidence was that this was an oversight on the part of the Human Resources Assistant. But we note that she stated that all candidates she qualified had the required driver license.

Complainant also argues that the position was not properly classified. The Agency's Human Resources Management Service, however, persuasively explained why the position was classified with the Nursing Assistant GS-621 series and grade -- it was management's decision how they wanted the position to be opened. ROI, 144. Complainant contended that management wanted this classification because the Motor Vehicle Operator position is a wage grade (WG) job where overtime cannot be required, which frequently resulted in patients missing medical appointments because Motor Vehicle Operators can refuse to work overtime. He explained management wanted the position classified in the GS Nursing Assistant series because they are not authorized to decline overtime. ROI, 104. Assuming this is true, this does not evidence disparate treatment based any protected class. Complainant has failed to prove pretext.

The FAD is AFFIRMED.

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

July 29, 2014

__________________

Date

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0120122778

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120122778