0120083383
04-01-2010
Herbert J. Gulley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Herbert J. Gulley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083383
Agency No. 200L-0635-2007103946
DECISION
On July 22, 2008, complainant filed an appeal from the June 30, 2008
final agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Housekeeping Aide at the agency's Medical Center facility in Oklahoma
City, Oklahoma. Complainant and the agency entered into a Memorandum
of Understanding (MOU) on April 9, 1998 whereby complainant was granted
a one-time priority consideration for a Painter/Paperhanger position
should it become available. The MOU stated that once complainant
exercised this priority consideration right, he would no longer have
priority consideration again. Complainant applied for a Painter position
advertised under Vacancy Announcement No. MP 2007-080. On August 2, 2007,
the Human Resources Specialist (HRS) informed the selecting official (SO)
that complainant needed to be given priority consideration because the
Office of Human Resources was unable to ascertain whether complainant had
submitted the MOU with a previous application. Complainant was found
qualified and was interviewed for the position. On August 24, 2007,
complainant learned that he had not been selected for the position.
On December 6, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Black), age (57),
and reprisal for prior protected EEO activity under Title VII when, on
August 24, 2007, he was not selected for the position of Painter.
At the conclusion of the investigation, complainant was provided 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). Initially, the FAD found that complainant had
failed to establish a prima facie case of discrimination on the any of
the alleged bases. The FAD then assumed that complainant had established
a prima facie case and found that the agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the selectee
had much more experience in painting including a great deal of experience
painting commercial buildings as well as homes. Further, the selectee had
been a full-time professional painter while complainant had painted only
part-time. The selectee had extensive supervisory experience while the
complainant possessed little or none. Finally, the FAD found that there
was no evidence that the agency's reasons were pretextual. The FAD noted
that it was clear from the MOU that complainant was entitled to priority
consideration only once and complainant's own statements indicated that
he has invoked the MOU previously. Nonetheless, the FAD determined that
complainant was accorded priority consideration in the instant case.
Therefore, the FAD concluded that complainant failed to prove that he
was subjected to discrimination or retaliated against as alleged.
CONTENTIONS ON APPEAL
In support of his appeal, complainant submitted a list of his
qualifications, but presented no arguments or allegations of error.
The agency requests that we affirm the FAD.
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 EEOC Management
Directive 110, 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").
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby a complainant 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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-804 (1973); Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, SO asserts that
complainant was not the most qualified candidate for the position. Report
of Investigation (ROI), SO's Aff. at 5. SO affirms that two staff members
interviewed the candidates and asked each candidate the same questions.
Id. at 3-4. SO reviewed each application and the panel's interview
notes, and questioned the interviewers about each candidate before he
made his selection. Id. at 3. SO avows that he sought a candidate
with professional commercial and/or residential painting experience.
Id. at 4. SO states that the selectee displayed significant professional
commercial and residential painting experience and exceptional customer
service skills and knowledge, while complainant did not demonstrate
the same level of experience. Id. at 5. SO asserts that complainant
possessed intermittent part-time experience in residential painting
and showed no proof of professional residential painting experience or
commercial experience. The record also reveals that pursuant to HRS's
memo regarding complainant's priority consideration, SO evaluated and
considered complainant's application first; however, complainant was not
the best qualified candidate. ROI, Exh. C-5. The recommending official
(RO) adds that the selectee was fully qualified and needed no training
while complainant lacked knowledge of commercial-based paints and any
experience in paper-hanging. ROI, RO's Aff. at 4.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Complainant states that he believes that he was not selected because
the last three painters hired were outside his protected classes.
Complainant also asserts that since he was issued the MOU, he should
have been properly considered for the position.
We find that aside from complainant's bare assertions, the record is
devoid of any persuasive evidence that discrimination was a factor
in the agency's decision. We further note that the agency has broad
discretion to set policies and carry out personnel decisions, and should
not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997). At all times the ultimate burden of
persuasion 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 failed to carry this burden. Accordingly, we find that
complainant has failed to show that he was discriminated against or
retaliated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 1, 2010_____________
Date
2
0120083383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083383