0120114149
03-06-2012
Joseph E. Henderson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph E. Henderson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114149
Hearing No. 460-2011-00114X
Agency No. 200301162010105116
DECISION
On September 11, 2011, Complainant filed an appeal from the Agency’s
October 26, 2011, final decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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 pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an IT Specialist at the Agency’s Michael E. DeBakey Veterans Affairs
Medical Center facility in Houston, Texas.
On November 2, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of age (59 at the time
of incidents) and reprisal for prior protected EEO activity under the
ADEA when:
1. On September 17, 2010 Complainant learned he had not been selected for
the position of Supervisory Information Technology Specialist (Policy &
Planning) position, (the position) under Announcement Nos. VN 96-10a,
GS-2210-13, and VN 146-10a, GS-2210-13; and
2. On January 5, 2010, the Facility Chief Information Officer (FCIO)
(46-47 years old at times of incidents) issued Complainant a performance
appraisal rating that was lower than in previous years.
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 but subsequently withdrew his
request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).
The Agency’s decision concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged and that Agency
officials articulated legitimate nondiscriminatory reasons for their
actions and that Complainant failed to show that such reasons were
pretextual. Specifically, the Agency found that nobody was selected
for the position posted under Announcement No. VN 96-10a and that the
position was posted a second time under Announcement No. VN 146-10a.
The Agency found that Complainant was not interviewed for the position
because his responses to the Knowledge, Skills, and Abilities (KSA’s)
portion of the application were too brief and inadequately detailed, so
that he failed to place among the top four candidates for the position.
With regard to Complainant’s performance appraisal, the Agency found
that FCIO articulated a legitimate nondiscriminatory reason for its
action when he explained that he gave Complainant an “exceptional”
rating for one element of his evaluation, but a “fully successful”
rating in the other five areas.
The instant appeal followed. On appeal, Complainant argues that FCIO,
who was the selecting official for the position, had not been with the
Agency for very long and that he chose people for the selection panel
who themselves had “less than a year” with the Agency. Complainant
argues that FCIO and the panel members hence did not have the experience
to properly evaluate the various candidates for the position and did
not have the ability to properly evaluate Complainant’s experience.
In addition, Complainant argues that FCIO was biased in favor of US Army
service members and specifically, members of his own reserve unit and
that the selectee for the position (33-34 years at time of incidents1)
was a member of FCIO’s reserve unit.
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”).
We note initially that, in the absence of direct evidence of
discrimination, the allocation of burdens and order of presentation of
proof in a Title VII case alleging discrimination is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see
Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (applying McDonnell
Douglas to age cases). First, Complainant must 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, 411 U.S. at 802. Next, the Agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency
is successful, then the Complainant must prove, by a preponderance of
the evidence, that the legitimate reason proffered by the agency was a
pretext for discrimination. Id. at 256.
Nonselection
With regard to claim 1, Complainant may establish a prima facie case of
discrimination in the nonselection context by showing that: (1) he is a
member of a protected class; (2) he was qualified for the position; (3)
he was not selected for the position; and (4) he was accorded treatment
different from that given to persons otherwise similarly situated who
are not members of his protected group or, in the case of age, who are
considerably younger than he. Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998); Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002
(September 18, 1996). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Complainant has shown that he is a member of a protected class (over
40 at time of incidents), that he was qualified for the position, see
Report of Investigation (ROI), Exhibit B2, p. 10, and that he was not
selected for the position. With regard to the position posted under
Vacancy No. VN 96-10a, however, Complainant admits that no selection was
ever made for the position, see id., B1, p. 13, and so Complainant cannot
show he was treated differently and hence cannot establish a prima facie
case. With regard to the position posted under Vacancy No. VN 146-10a,
Complainant can meet all four prongs because the selectee was not part
of Complainant’s protected age group and was over twenty years younger.
Complainant has therefore successfully established a prima facie case of
age discrimination. The Agency, however, has explained that Complainant
was not granted an interview and not selected for the position because
his responses to the KSA’s were too brief. FCIO averred that:
reviewing his answers to his KSAs, - typically when we have a KSA
question, there is a half page to a full page of responses. We were
surprised that his — all of his were basically a quarter of a page or
less, a simple paragraph. He did not answer his questions as well as
others did.
ROI, Exhibit B2. p. 24.
This view was repeated by the Panel Members (PM1: 32 years; PM2: 40 years)
who studied the various applicants’ materials and interviewed the more
successful ones. See ROI, Exhibits B3, pp.17-18 and B4, p. 18.
The Agency having articulated a legitimate reason for not selecting
Complainant, the burden thus returns to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Texas Department of Community Affairs,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We note that in nonselection cases, pretext may be found where the
complainant's qualifications are demonstrably superior to the selectee's.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an
employer has the discretion to choose among equally qualified candidates.
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
Complainant averred that he was better qualified than the selectee
because while the selectee had experience with information technology
at the Department of Defense “this is the VA. So [the selectee] had
no experience in a hospital, which this is a functioning hospital with
sick people upstairs. This is the Veterans Administration. It's not the
Department of Defense. And he does not have experience with the operating
system that we use here in the hospital.” ROI, Exhibit B1, p. 23.
Complainant further averred that he had 23 years of experience using the
Agency’s operating system. Id. In addition, Complainant said that FCIO
made discriminatory age-related comments, including stating in front of
a large group of employees that “I’ve got too many people on my team
that are retirement age” and stating with regard to some old office
furniture “This office furniture is ancient. . . . [S]ome of this stuff
is almost as old as [one of the office employees]. So he's bringing,
again, people's age in to play in the most casual, but affrontive [sic]
context possible” Id., pp. 16-18. Complainant further stated that
FCIO hired several younger workers. Id.
A review of the applications of Complainant and the selectee supports the
claims of Agency management officials who averred that S’s KSA responses
were lengthier and more detailed than those of Complainant. See ROI,
Exhibit C4, pp. 34-38 and pp. 21-22. Furthermore, while Complainant’s
qualifications are impressive, a comparison of his qualifications with
those of the selectee do not show that Complainant’s are “demonstrably
superior.” See id., pp. 1-23 and 25-42. While Complainant argues
that his experience with the Agency’s operating system made him more
qualified than the selectee, FCIO averred that knowledge of the operating
system was not a requirement for the position, see ROI, Exhibit B2,
p. 27, and a review of the position description does not indicate that
knowledge of the Agency’s operating system was necessary or required.
Instead, the position description merely required candidates to “meet
all requirements identified in the Office of Personnel Management’s
Operating Manual on Qualifications Standards for General Management
Series, GS-2210, and the Group Coverage Qualification standard
for Administrative and Management Positions.” ROI, Exhibit C2,
p. 11. Finally, we note that Complainant repeatedly argues that
FCIO preferred candidates and employees with military backgrounds
and specifically, members of his own reserve unit. Such arguments
do not support Complainant’s claim that his nonselection was based
on age discrimination. Following a review of the record we find that
Complainant has not met his burden of establishing that the Agency’s
articulated reason for not selecting him was merely pretextual.
Performance Appraisal
Complainant averred that when FCIO gave him his performance appraisal,
he also mentioned that he had recently sent “a full DVD of information
on your case off to the investigator,” ROI, Exhibit C4, p. 8, and that
this shows that Complainant’s EEO complaint was on FCIO’s mind when
he gave Complainant his appraisal. Complainant further averred that he
felt he deserved a higher rating because
I was acting chief of the section. I had contributed to and continue
now contribute to the security integrity of the institution by my
direct involvement in creating information security documentation
and continuing to append it and present it to the [Ageny] as work for
this facility. I am the only person in the section that does that.
And I am considered an expert resource for that information by Region
Two, because I am part of the Region Two security management team.
I'm the Region Two VISTA PLA&M lead. Now, VISTA is our application,
that is [an Agency] application. PLA&M is a Plan of Action Milestone,
which is a suggestion that the separate program office sends us for the
correction of security issues. I'm also the National FISMA Challenge
VISTA lead for the enterprise for all regions within the [Agency].
ROI, Exhibit B1, p. 34.
Complainant may establish a prima facie case of age discrimination by
demonstrating that: (1) he is a member of a protected class, (2) he
was subjected to adverse treatment, and (3) he was treated differently
than otherwise similarly situated employees outside of his protected
class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13,
2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26,
2002). In the instant case, however, we find that Complainant cannot
establish a prima facie case because he cannot show he was treated
differently than otherwise similarly situated employees. Complainant
identifies two colleagues who he argues were treated differently
in that one received an “outstanding” evaluation and the other
an “exceptional” evaluation. We find, however, that these two
comparators (C1 and C2) were not similarly situated with Complainant
because they were not rated by the same person. Specifically, Complainant
avers that he wrote the evaluations for C1 and 2, see ROI, Exhibit B1,
p. 35, while FCIO was the person who rated Complainant. Complainant has
not identified similarly situated coworkers younger than he who were
rated by FCIO and who were treated differently than he was.
Complainant may establish a prima facie case of reprisal by demonstrating
that: (1) he engaged in a prior protected activity; (2) the official
acting on behalf of the Agency was aware of the protected activity;
(3) he was subjected to adverse treatment by the Agency; and (4)
a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). Complainant has met all
four requirements by showing that FCIO gave him a lowered evaluation
and knew of Complainant’s EEO activity because at the time of the
evaluation, he told Complainant that he had sent a DVD of materials to
the EEO investigator. The burden next shifts to the Agency to articulate
a legitimate nondiscriminatory reason for its action. Burdine, 450
U.S. at 253.
FCIO averred that Complainant received an “exceptional” rating for
the “documentation” element of his evaluation, which was one of
five critical elements but that overall Complainant received a “fully
successful” evaluation because “he did an OK job.” See ROI,
Exhibit B2, pp. 37-38 & Exhibit C10, pp. 1-8. FCIO further averred
that Complainant “was also participating on a region team” but that
he had no knowledge of Complainant’s activities in that activity and
so could not rate him on it. See id., p. 37.
The Agency having articulated a reason for its action, the burden shifts
back to Complainant to 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).
Complainant, however, has presented no evidence to support a showing
of pretext. While it may be unfair that FCIO was incapable of rating
Complainant on a portion of his performance, namely his participation
in a region team, Complainant has not shown that this was due to
discrimination or reprisal. Specifically Complainant presented no
evidence that other coworkers who participated in similar region teams
were evaluated on their performance with such teams by their supervisors.
While Complainant disagrees with the rating he received, he has failed
to meet his burden of establishing, by a preponderance of the evidence,
that the Agency’s articulated reason for its action is a mere pretext
for discrimination based on reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
Complainant has not met his burden of establishing, by a preponderance
of the evidence, that his nonselection and his performance appraisal
were the result of age discrimination or reprisal, and we AFFIRM the FAD.
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
March 6, 2012
__________________
Date
1 The selectee was born in September 1976, but the record does not
provide the day of the month. Complainant learned of the discrimination
on September 17, 2010.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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