0120113741
08-30-2013
Kevin Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kevin Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113741
Hearing No. 430-2010-00281X
Agency No. 2004-0637-2009104550
DECISION
Complainant filed an appeal from the Agency's June 29, 2011 final order concerning his equal employment opportunity (EEO) complaint. He alleged 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 (ADEA), as amended 29 U.S.C. � 633(a). The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist, GS-11 at the Agency's VA Medical Center in Asheville, North Carolina.
On September 1, 2009, Complainant contacted an EEO Counselor and filed a formal EEO complaint on December 16, 2009, alleging that the Agency discriminated against him on the bases of sex (male) and age (50) when, on July 21, 2009, he learned that the Agency did not select him for the position of Medical Technologist, GS-0644-11 under vacancy announcement number T38H-09-43.
On May 5, 2009, the Pathology and Laboratory Services issued a vacancy announcement for a new Medical Technologist (Ancillary Testing Coordinator) position. Complainant applied. At the time of his application, Complainant was already a GS-11, with 21 years of Medical Technologist experience.
The position at issue required the selectee to have very specific knowledge related to both Quality Management and Ancillary Testing.
The Agency interviewed fourteen candidates, including Complainant. It is undisputed that the determinative factor in the selection was the score issued by the rating panel. All of the candidates were asked the same questions. The panel members then scored each applicant. The undisputed record is that the panel was not aware of the candidates' ages.
The interview panel consisted of two men and two women, all over the age of 40. The selecting official was the Chief of Pathology, a male who was also older than Complainant.
On July 1, 2009, the Chief of Pathology selected the highest scoring individual for the position. She was a younger, female employee. She received a score of 97. Complainant received a score of 69.5 and was ranked third of the fourteen candidates interviewed.
The record shows that the selectee had approximately thirteen years experience as a Medical Technologist and had been working at the Asheville Medical Center since 2002. She was a GS-9 level employee. There was testimony that the selectee had served as the back-up for the Ancillary Testing Coordinator; and the selectee had crammed for the interview by reviewing resources that were available to all Agency employees.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination.
The AJ concluded that "Complainant failed to raise any genuine issues of material fact relevant to his allegations of discrimination based on sex and age which would warrant a hearing." The AJ referenced the undisputed testimony that Complainant's position and the position at issue differed considerably, although both were GS-11 level positions. The AJ considered Complainant's allegation that he had more experience than the selectee and that the selectee was given an unfair advantage "because the interview questions were tailored for someone with her experience." The AJ also considered Complainant's statement that he had applied for other dayshift positions and was not selected. The AJ reasoned, however, that Complainant did not provide evidentiary support for his claims. The AJ stated that she did not find the fact that the selectee was working at the GS-9 level "by itself to be evidence of pretext."
The Agency's final action implemented the AJ's decision.
This appeal followed.
ANALYSIS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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. Id. at 255. 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); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (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 find that the record before us is adequate for summary disposition. The record consists of more than five hundred pages of testimony and includes the Report of Investigation and Complainant's Opposition to the Agency's Motion for Summary Judgment.
Disparate Treatment
Section 717 of Title VII Section 717 and Section 633(a) of the ADEA apply to this employment discrimination claim against the Federal government. Section 717 and Section 633(a) state that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination." Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(a) provides "It is the policy of the Government of the United States to provide equal opportunity in employment for all persons [and] to prohibit discrimination in employment because of sex . . . and age."
Generally, a complainant may establish discrimination 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).
As an initial matter, we note that Complainant did not identify any specific credibility issues or material facts in dispute regarding the single non-selection claim that is before us. Complainant cites the fact that Complainant had more years of service and that he was already in a GS-11 position and, therefore, he maintains that he should have been given a lateral transfer to the newly created GS-11 position. He also alleges that the interview questions were ones that only the selectee could answer because the questions pertained to the operation of the program to which only she was already assigned.
We find that he established that he is a member of a statutorily protected class (male, over age 40) and that he applied for a position for which he was qualified and the Agency selected a younger female who was a GS-9 at the time of selection.
The Agency articulated a legitimate, nondiscriminatory reason (the agency selected the candidate whom the panel scored the highest, based on the selectee's performance during the interview). The stated reason is supported by the record. The undisputed evidence of record is that the interview was the determinative factor. Complainant was ranked third.
For Complainant to prevail, he would have to show that the stated reason was a pretext for unlawful discrimination. We do not find evidence that would show that the action complained was based on his being a male or age 50. The record shows that the panel rated a male and female candidate higher than Complainant.
We note that the younger person selected had been permitted to serve in the position prior to the issuance of the vacancy announcement and by management's testimony that the selectee "obviously gained an advantage" that was not given to Complainant. However, that disadvantage fell equally on all other men and women, regardless of age.
Further, the rating panel consisted of persons over the age of 40 and included two men and two women. The selections by the responsible officer reflects the hiring of men over age 50 during the past two years. There is nothing in the record that refutes the panel determination that the individual selected was deemed the best qualified.
Consequently, looking at the single non-selection issue before us, we find that the AJ properly concluded that the Agency was entitled to summary judgment. Complainant did not identify, and our review did not uncover any material evidence that was missing from the record. After a careful review of the record, we find that the AJ appropriately concluded that there was no genuine issue of material fact or credibility in this case.
CONCLUSION
Therefore, we AFFIRM the Agency's final action.
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 tends 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 30, 2013
__________________
Date
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0120113741
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113741