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

Equal Employment Opportunity Commission

Sep 26, 2014

0120131914 (E.E.O.C. Sep. 26, 2014)

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

,
Complainant,

v.

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

Appeal No. 0120131914

Hearing No. 480-2012-00343X

Agency No. 200P-0593-2011103858

DECISION
On April 19, 2013, Complainant filed an appeal from the Agency’s April 4, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a Police Officer at the Agency’s medical center in Las Vegas, Nevada.
On August 3, 2010, Complainant filed an EEO complaint in which he alleged that the Chief of
Veterans Affairs, Policy and Security (chief) discriminated against him on the bases of his race
(white), age (54) disability, and in reprisal for prior protected activity by not selecting him for
the position of supervisory police officer on May 18, 2011.

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). Complainant timely requested a hearing. When the Complainant
did not object, the AJ assigned to the case granted the Agency’s June 12, 2012, motion for
summary judgment and issued a decision on March 12, 2013. The Agency subsequently issued
a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
0120131914

2
subjected him to discrimination as alleged. On appeal, Complainant contests the AJ’s decision
on its merits.

Complainant was one of three candidates who were referred to the chief as best-qualified. The
chief assembled an interview team consisting of three supervisors from different branches of
the organization. The chief provided the panel members with a list of nine standard questions
and directed them to interview the candidates and make the selection. All three candidates
were asked the same questions, and each answer was assigned a point value of (1) through (5)
with (5) denoting the highest rating. In addition to their interview performance, the candidates
would be rated on the overall quality of their application packages. The panelists interviewed
the candidates and awarded Complainant a combined score of 124 points and the selectee a
combined score of 136 points. The last question on the list was directed to the panel members.
Each panel member was asked whether he would hire the candidate and why. All three
panelists responded that they would hire the selectee, but only two responded that they would
hire Complainant. According to one of the panelists, when asked why he wanted the job,
Complainant answered that no one else applied for it. When asked about the selectee, the
panelist averred that he had great ideas and showed himself to be thinking about the future in
creative ways. The chief averred that the selection panel made the unanimous decision to
choose the selectee, and that he went with that decision. He also stated that he would have
chosen Complainant if he had received the highest score. Investigative Report (IR) 129-37,
267, 269, 275-79, 280-93, 298-309.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a summary judgment decision 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). A fact is "material" if it
has the potential to affect the outcome of the case. Abeijon v. Department of Homeland
Security, EEOC Appeal No. 0120080156 (August 8, 2012). 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. Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255
(1986).
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, however, since the Chief has articulated a
legitimate and nondiscriminatory reason for not selecting Complainant for the position of
supervisory police officer. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). According to the members of the interview panel, while Complainant had
more years of experience than the selectee, the selectee had performed better than Complainant
0120131914

3
during the interview. We have consistently held that having more years of experience than a
selectee does not necessarily make an individual more qualified to meet the needs of the
organization. See Collins v. Dep't of Treasury, EEOC Request No. 05A41248 (Oct. 5, 2004).

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanation given by the Chief for not selecting him is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133. 143 (2000). Personnel selections made by
agencies should not be second-guessed unless there is evidence of unlawful motivation. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Because the
Agency has the discretion to choose among qualified applicants, the Commission will not
disturb the judgment of selecting officials, even if they misjudge the qualifications of the
candidates, unless Complainant’s qualifications were so plainly superior to those of the selectee
as to compel a finding of pretext. Guida v. United States Postal Service, EEOC Appeal No.
01923174 (April 15, 1993). The motivation behind the selection is the focus of the inquiry,
not the Agency’s business judgment. Glass v. United States Postal Serv.

, EEOC Appeal No.
07A50068 (June 15, 2006). Here, while both candidates were found to be highly qualified for
the supervisory police officer position, all three panelists gave the edge to the selectee on the
basis of his performance during the interview. The assessments of the panel members are
supported by contemporaneous notes prepared during the interviews or shortly thereafter.
Complainant has not presented any documents or affidavits which contradict the sworn
statements made by the chief and the members of the interview team. We therefore agree with
the AJ that Complainant has not met his burden of proving the existence of a discriminatory
motivation on the part of anyone involved in the selection.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we 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
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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 Date
September 26, 2014
Office of Federal Operations