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

Equal Employment Opportunity CommissionAug 12, 2014
0120131297forweb (E.E.O.C. Aug. 12, 2014)

0120131297forweb

08-12-2014

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


,

Complainant,

v.

Robert McDonald,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120131297

Agency No. 2004-0652-2009101144

DECISION

On February 7, 2013, Complainant filed an appeal from the Agency's January 8, 2013, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer, WG-2, at the Agency's Hunter Holmes McGuire VA Medical Center in Richmond, Virginia.

On March 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when:

1. On November 25, 2008, he was not selected for the position of Maintenance Worker, WG-8, under Announcement Number 08-112;

2. On January 16, 2009, he was not selected for the position of Painter, WG-9, under Announcement Number 09-120; and

3. On February 11, 2009, he was not selected for the position of Maintenance Worker,

WG-8, under Announcement number 09-33.

On June 2, 2009, the Agency accepted claim (1) for processing. The Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

At the conclusion of the investigation on claim (1), 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). Complainant requested a hearing. On June 14, 2010, the AJ issued an Order cancelling the hearing request on the grounds Complainant failed to prosecute and failed to comply with the AJ's May 17, 2010 Order. The AJ remanded the formal complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. �1614.110(b).

When the complaint was submitted to the Agency's Office of Employment Discrimination Complaint Adjudication (OEDCA) for a final decision, OEDCA determined that claims (2) and (3) were improperly dismissed. Thus, OEDCA directed a supplemental investigation on claims (2) and (3).

After a supplemental investigation on claims (2) and (3), the Agency issued a final decision on May 31, 2011. In its final decision, the Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(4), on the grounds that Complainant elected to file a grievance on the same matter through a negotiated grievance process. In addition, the Agency determined Complainant failed to establish a prima facie case of discrimination with respect to claims (2) and (3) because he failed to show that he applied for the positions identified in claims (2) and (3). The Agency also determined it articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant failed to demonstrate those reasons were pretextual.

Complainant appealed the Agency's decision to the Commission's Office of Federal Operations (OFO). In EEOC Appeal No. 0120113353 (December 9, 2011), OFO found the AJ properly dismissed Complainant's hearing request. In addition, OFO affirmed the Agency's finding of no discrimination with regard to claims (2) and (3). However, OFO reversed the Agency's dismissal of claim (1), finding that the Agency did not provide a copy of the grievance relied upon to dismiss Complainant's complaint. The Commission ordered the Agency to process the remanded claim in accordance with 29 C.F.R. � 1614.108 and to notify Complainant of the appropriate rights within 150 calendar days of the date that decision became final, unless the matter was otherwise resolved prior to that time.

The Agency filed a request for reconsideration of the Commission's decision. The Commission denied the Agency's request in EEOC Request No. 0520120232 (June 9, 2012). The Commission restated its prior Order.

On January 8, 2013, the Agency issued a final decision finding Complainant was not subjected to discrimination with regard to claim (1). In its decision, the Agency determined Complainant established a prima facie case of race discrimination. The Agency found Complainant failed to establish a prima facie case of reprisal discrimination. Specifically, the Agency stated that Complainant did not participate in protected EEO activity prior to his nonselection on November 25, 2008. The Agency also found management articulated a legitimate, nondiscriminatory reason for its action which Complainant failed to show was a pretext for discrimination.

Complainant subsequently filed the present appeal. On appeal, Complainant claims that the Agency denied him his right to have a hearing on claim (1) before an AJ in accordance with OFO's prior decision.

In response to Complainant's appeal, the Agency notes that Complainant previously requested a hearing on claim (1), but the AJ dismissed Complainant's hearing request for failure to prosecute. The Agency notes that in his appeal, EEOC Appeal No. 0120113353, Complainant argued that the AJ should not have dismissed his request for a hearing. The Agency states that in its prior decision, OFO found that the AJ properly dismissed Complainant's hearing request. Thus, the Agency argues that Complainant's hearing request was properly dismissed as to all three claims in his complaint, and the issue of whether the hearing request was properly dismissed has already been decided by OFO.

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. (November 9, 1999) (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").

At the outset, we address Complainant's argument that he was denied the opportunity to request a hearing on the present complaint. We acknowledge that the Order contained in EEOC Appeal No. 0120113353 and EEOC Request No. 0520120232 could be read as indicating Complainant might get a right to request a hearing; however, we note the Order states Complainant be given "the appropriate rights within 150 calendar days of the date that decision became final." As a result of our prior finding in EEOC Appeal No. 0120113353 that Complainant's request for a hearing was properly cancelled by the AJ, we find it is not appropriate to give Complainant the right to a hearing on claim (1).

We turn now to Complainant's allegations of discrimination. 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 Construction 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 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, 134 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).

In the present case, the Agency presented legitimate, nondiscriminatory reasons for its actions. The record reveals that Complainant applied for a Maintenance Worker, WG-4749-8, position on February 20, 2008. Complainant was deemed qualified and was referred on the merit promotion certificate. A selection panel was convened consisting of an Administrative Officer from the Engineering Department (Panel Member 1), a Maintenance Supervisor (Panel Member 2), and a Maintenance Foreman (Panel Member 3). All applicants were asked the same questions. Not all panel members were present for all the interviews. The selection panel interviewed 22 applicants, including Complainant. The Agency noted that based on interview scores, Complainant was ranked twelfth out of sixteen for veterans and internal applicants. Selectee 1, an internal candidate, was selected. Selectee 2 and Selectee 3, external candidates, were also selected.

Panel Member 1 stated that the Maintenance Worker position was not a training level position and, thus, the selectees were expected to possess a certain skill set. Panel Member 1 stated that although Complainant made mention of some background in the maintenance field, his responses to the questions did not indicate that he had a thorough knowledge of facility maintenance and repair principles. Panel Member 1 noted that Complainant failed to provide specific names of companies, job titles, or references with regard to his maintenance experience and he did not provide the information during his interview.

In contrast, Panel Member 1 states that the selectees had several years of related maintenance experience. He noted that Selectee 1 worked in the same position as a Maintenance Worker at another Agency facility for several years, had related experience in the private sector for numerous years, and answered nearly all of the interview questions correctly. With regard to Selectee 2, Panel Member 1 stated that he had the highest numerical rating of all 22 candidates. Panel Member 1 noted that Selectee 2 referenced his numerous years of experience as a maintenance worker in industrial and commercial settings. With regard to Selectee 3, Panel Member 1 stated that he had over 20 years experience in the maintenance field which included work at government facilities. Panel Member 1 stated that the selectees all scored higher on their interviews than Complainant and that Complainant's correct responses to the interview questions were less than 35% of the level of the top candidates.

In addition, Panel Member 2 stated that Complainant was not selected because he showed very limited knowledge and experience in maintenance work. Panel Member 2 explained that those selected for the position needed to have knowledge and experience in repair work and the ability to do basic repair work. Panel Member 2 stated that the selectees demonstrated more knowledge and experience in maintenance work based on their answers to the interview questions and the situations they described during their interviews. Panel Member 2 also noted that Selectee 1 was already performing maintenance work at another facility.

The Selecting Official for the Maintenance Worker, WG-8, was the Chief Engineer. The Selecting Official stated that the panel members interviewed the applicants, ranked them, placed the scores on a scoring sheet, and then provided the information to him. He stated that he reviewed the recommendations of the panel based on the scores and reference checks and he signed the certificate for recommendation of hire. The Selecting Official stated the selectees were better qualified than Complainant. He noted that Selectee 1 had previously worked in the same job at another Agency facility and had the second highest average score of veterans and in-house applicants. The Selecting Official noted that selectees had the top three average scores of all in-house and veteran applicants. The Selecting Official stated that Complainant did not have the technical ability and experience necessary to perform the position at issue.

In an attempt to show pretext, Complainant claimed that he was disadvantaged in the interview process because his panel interview consisted of only two panel members which he stated made his score considerably lower than the other candidates who were interviewed by three members of the panel. The Agency noted that Panel Member 2 and Panel Member 3 did not participate in all of the applicant interviews, thus, Complainant was not the only candidate who was not interviewed by the entire selection panel. Specifically, we note the record reflects that Selectee 1 was only interviewed by one panel member. In addition, the Agency noted that the interview scores were averaged based on the number of interviewers attending the interview; thus, the final score was an average and not the raw total of scores compiled by each interviewer. We find no evidence Complainant was subjected to discrimination when he was interviewed by two panel members as opposed to three.

Complainant also tried to show pretext by asserting that he was more qualified than the selectees because he worked at the facility for six years. There is no dispute that Complainant was minimally qualified for the position as we note he was referred on the merit promotion certificate. However, we find there is no evidence that Complainant's qualifications were plainly superior as to warrant a finding of pretext. Upon review, we find a preponderance of the record evidence does not establish that discrimination occurred.

CONCLUSION

Accordingly, the Agency's final decision finding no discrimination 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

August 12, 2014

__________________

Date

2

0120131297

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120131297