Jill M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120182348 (E.E.O.C. Sep. 25, 2019)

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

Jill M.,1
Complainant,

v.

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

Appeal No. 0120182348

Hearing No. 450-2015-00072X

Agency No. 2003-0549-2014103399

DECISION

On June 28, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 22, 2018, final order concerning her 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issue presented is whether Complainant established that the Agency discriminated against her
on the bases of sex and age when she was not selected for the position of Director of
Comprehensive Homeless Programs.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Social
Worker (Program Manager), GS-13, at the Agency’s North Texas Veterans Healthcare System,
Homeless Veterans Program in Fort Worth, Texas.

In February 2014, Complainant applied for the position of Director of Comprehensive Homeless
Programs but was not hired. The position was reposted in April 2014 and eight applicants,
including Complainant, were referred for selection. Complainant was again not selected for the
position. The officials involved in the selection process included: Complainant’s first-line
supervisor (S1), Director of Comprehensive Homeless Programs; Complainant’s second-line
supervisor (S2), the Associate Chief of Staff for Mental Health; and the Chiefs of Social Work
(P1) and Psychology and Mental Health (P2), who served as selection panelists.

Panel members reported that interviews were conducted with panel members rotating through
questions and scoring each answer independently. Summary scoring revealed Complainant earned
21 points following Part A of the selection process while the selectee earned 18 points. On Part B
of the selection process, the selectee scored significantly higher than Complainant, earning 113.5
points while Complainant earned 65. S2, the final decision maker, stated that she based her
ultimate selection decision on the spread in interview scores awarded by the panel, feedback from
staff members, and her own evaluation of the candidates’ attributes.

On July 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female) and age (54) when: on April 29, 2014, she was not selected
for the Director of Comprehensive Homeless Programs position, GS-0185-14, advertised under
Vacancy Announcement AH-14-HC-1089065.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. On April 10, 2018, the AJ assigned to the
case issued a Notice of Intent to Issue Summary Judgment and provided the parties until April 25,
2018 to respond to the Notice. Complainant requested and was granted an extension to respond to
the Notice by May 1, 2018. The AJ assigned to the case determined sua sponte that the complaint
did not warrant a hearing and issued a decision without a hearing on May 4, 2018.

In the decision, the AJ found that Complainant met her burden of establishing a prima facie claim
of discrimination based on her gender and age. However, the AJ determined that summary
judgment was appropriate because viewing the evidence in the light most favorable to
Complainant, the record revealed that she offered no evidence that the Agency’s articulated
reasons were pretext for discrimination. The AJ noted that although the Agency found
Complainant qualified for the job, the selectee was the best qualified individual for the position.

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The AJ explained that the record showed that at the time of application, Complainant was a
Program Manager for the Homeless Veterans Program while the selectee had experience as Deputy
for Mental Health and Acting Chief of Staff for Mental Health at the VA facility in Black Hills,
South Dakota. A three-member panel unanimously agreed that the selectee was the most qualified
individual to occupy the job, as he had experience managing multiple programs related to the work
that would be performed. The panel concluded that Complainant did not have the breadth of
knowledge that the Director job required and characterized Complainant’s work experience in the
social work realm as opposed to occupying a position that required innovative and visionary
leadership. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ demonstrated impermissible bias when she
determined that Complainant failed to submit a response to the Notice of Intent to Issue Summary
Judgment. Complainant maintains that she submitted her response on May 1, 2018 and provides
an email which she contends shows that her response was timely filed. Complainant claims that
because she filed a timely response, the AJ improperly dismissed Complainant’s hearing request.
Complainant contends that the Agency’s articulated reasons for her non-selection are pretext.
Specifically, Complainant asserts that the selectee was not the best qualified candidate; she did not
receive an interview for the posting; the Agency did not provide an explanation for why some
panelists’ sheets were typed and some were handwritten; her most recent performance review was
rated higher then the selectee’s most recent performance review; and the determination that she
had not managed programs was not supported by the facts because four separate programs were
under her management. Complainant concludes that the decision makers were dismissive of her
experience as a social worker.

In response to Complainant’s appeal, the Agency maintains that the evidence demonstrates that
Complainant cannot show that her qualifications are observably superior to those of the selectee.
Specifically, the Agency contends that Complainant had a comparatively small portion of the total
range of functions of the position in question. The selectee, the Agency argues, spent two years
as the Domiciliary Chief, where he was responsible for supervising and managing multiple
programs, which included all the Compensated Work Therapy and all the Homeless Programs at
the VA Black Hills Health Care System. Thereafter, the selectee was the Deputy Acting Chief of
Staff for Mental Health and subsequently the Acting Chief of Staff for Mental Health. In those
roles, he was responsible for overseeing the entire Mental Health service line. The Agency adds
that the selectee performed better on the performance-based interview. As for Complainant’s
arguments on appeal, the Agency asserts that Complainant contradicted herself when she alleged
that the Director failed to question her about her vision; Complainant did not require an interview
when the position was reposted; and the evidence failed to support her assertion that she was
treated differently in her meet-and-greet. The Agency concludes that Complainant failed to
establish that management officials’ articulated reasons were pretext for discrimination.

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ANALYSIS AND FINDINGS
Summary Judgment

We determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for 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 “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant asserts that
summary judgment was inappropriate because she submitted a timely brief to the AJ, which the
AJ did not consider. Although Complainant asserts that the AJ acted improperly by failing to
consider her response to the Notice of Intent to Issue Summary Judgment, we note that not only
did the AJ grant Complainant’s extension request, the record contains an email addressed to the
AJ at 10:32 p.m. on the date in question, which was after business hours. Complainant further
adds that the selectee was not the most qualified and the Agency erred in finding that she had not
managed multiple programs. Ultimately, the AJ correctly determined that there are no genuine
issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a
decision without a hearing 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 a complainant to prevail, she 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 Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the factfinder 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).
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Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable factfinder could not find in Complainant’s favor. The AJ properly determined that the
Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the
position. S2 explained that increased numbers and programs required creativity and innovation.
ROI, at 104-105. S2 stated that as a result, she was seeking a candidate that would not do things
“business as usual in a very rigid narrow-focused way” and needed someone with flexibility,
creativity, a willingness to do things innovatively, and a visionary. Id. In contrast, Complainant
testified that while she had a vision, she would “probably follow suit with a lot of what was going
on because [she] did not note that there were any grave deficiencies.” Id. at 85-86. Additionally,
panel members testified that Complainant seemed to have a narrow focus and lacked the “big
picture, visionary, innovative approach to things”, which the selectee demonstrated. ROI, at 106.
Moreover, panel members felt that Complainant did not have the level of experience that the
selectee held as Acting Chief of Staff for Mental Health, as he was performing a similar job prior
to his selection and appeared to understand the nuances behind every program. P2 testified that
the selectee answered questions in “a superior way from a foundation of experience and
knowledge.” Id.at 132.

When a case for discrimination is circumstantial, as this one is, Complainant can raise a genuine
issue of material fact by submitting sworn statements or documents tending to show that the
articulated reasons for not selecting her are pretextual. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993) citing Burdine 450 U.S. at 253. In non-selection cases, evidence of pretext
can take the form of a showing that Complainant’s qualifications for the position were plainly
superior to those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No.
0120141721 (Dec. 3, 2015). Complainant can also present evidence of discriminatory statements
or past personal treatment by the selecting officials, comparative or statistical data revealing
differences in treatment across racial, gender, or age-related lines, unequal application of Agency
policy, deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Melissa F. v. United States Postal Service,
EEOC Appeal No. 0120141697 (November 12, 2015).

The Commission cannot second-guess an Agency’s decisions involving personnel selections
unless there is evidence of a discriminatory motivation on the part of the officials responsible for
making those decision. See Burdine, 450 U.S. 248, 259 (1981). An employer has discretion to
choose among equally qualified candidates as long as the selection is not based on unlawful
criteria, in this case Complainant’s sex and age. Complainant v. Department of Homeland
Security, EEOC Appeal No. 012014178 (July 31, 2015).

When asked by the investigator why she believed her sex and age were motivating factors in her
non-selection, Complainant insisted that she had more experience than the selectee in several of
the selection criteria. Specifically, Complainant felt that she was most qualified for the position
because she had been a Program Manager since 2007; worked multiple homeless programs; and
functioned as interim Chief whenever the Chief was on leave.
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The selectee was a younger male. Complainant’s contention appears to rest on the notion that the
non-selection itself was sufficient to establish the motive and fails to consider the selectee’s prior
experience. Complainant did not provide evidence of any of the indicators of pretext described
above. She has not submitted any sworn statements from other witnesses or documents which
contradict the explanations provided by any of the officials involved in the selection, call into
question the veracity of those officials, or otherwise raise questions as to whether her qualifications
were plainly superior to those of the selectee. We therefore find, as did the AJ, that no genuine
issue of material fact exists with respect to any aspect of the Agency’s decision not to hire
Complainant as Director of Comprehensive Homeless Programs.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against based on her sex or age as
alleged. The record supports the Agency’s determination that the proffered reasons regarding
Complainant’s non-selection were legitimate and nondiscriminatory. Moreover, Complainant did
not provide persuasive arguments, below or on appeal, that the Agency’s actions were pretext for
discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s
decision that Complainant was not discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 25, 2019
Date