0120082624
09-19-2008
Lee A. Robinson, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Lee A. Robinson,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082624
Hearing No. 560-2007-00368X
Agency No. 2003-0589-2007100567
DECISION
Complainant filed an appeal from the agency's April 9, 2008 final order
concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the 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.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Patient Service Assistant at the agency's facility in Kansas
City, Missouri. On January 13, 2007, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of age (68 years
old) and in reprisal for prior protected EEO activity.
On February 12, 2007, the agency issued a partial acceptance letter
to complainant. Therein, the agency accepted the following claim for
investigation:
On or about November 14, 2006, [complainant] called the [human resources]
department and learned that [he was] not selected for an Addiction
Therapist position, GS-101-9,...Thus, [complainant] contend[s] that
not only [was he] not selected, [he was] also not notified of [his]
non-selection for this position.1
The agency, however, dismissed the basis of whistle-blowing finding that
it is not within the purview of the Commission. In addition, the agency,
in its partial acceptance letter, stated that "although [complainant's]
EEO Counselor makes reference to an unidentified claim, when [he]
initially called in but left numbers that disabled this office from
contacting [him], [he] chose not to pursue the claim.2 [Complainant was]
non-responsive to what [his] EEO Counselor labeled 'Claim 1.' It is thus
impossible to dismiss or go forward with a claim that is non-existent."
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). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned
to the case granted the agency's January 8, 2008 motion for a decision
without a hearing and issued a decision without a hearing on March
27, 2008.
The AJ, in her decision, stated that whistle-blowing claims are not
encompassed under Commission laws and regulations. The AJ further found
that that the agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the AJ stated that all interviews had
the same questions and the same scoring scale, and all decision-makers
felt the chosen candidates interviewed better than complainant and had
more appropriate experience. In addition, the AJ stated that the agency
produced evidence that complainant did not give the agency a valid e-mail
address and therefore its attempt to notify him of his non-selection was
unsuccessful. The AJ also found that complainant failed to establish
that the agency's articulated reasons were pretext for discrimination
and/or retaliation.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ's decision without a hearing
is improper. Specifically, complainant states that his education is
superior to the selectees' education. In addition, complainant asserts
that he has more years of sobriety than the selectees. Complainant,
on appeal, does not contest being interviewed for the position in
question but asserts that "[t]here was a time when [c]omplainant went
into each interview...and could recall the exact time and place of
the interview...But after interview after interview and being denied
positions over and over ..., the interview process became a negative
experience and something to be forgotten as soon as it was finished."
Complainant, on appeal, also states that the agency should have been
able to decipher his correct e-mail address and thus notify him of his
non-selection. Finally, complainant states that he had a claim of a
pattern of non-selections which was not addressed.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. 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").
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. In the instant
matter, we find that the AJ properly issued a decision without a hearing
because no genuine issue of material fact exists.
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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Basis of Whistle-blowing
The Commission finds that the basis of whistle-blowing was properly
dismissed by the agency and the AJ. The Commission has previously held
that whistleblower activities are generally outside the purview of the EEO
process. See Giannou v. Department of Housing and Urban Development, EEOC
Request No. 05880911 (February 13, 1989) (holding that complainant failed
to state a claim regarding claims of retaliation for whistle-blowing
activity). Thus, we find that the basis of whistle-blowing was properly
dismissed.
Unidentified Claim
The Commission finds that complainant's allegation regarding an on-going
pattern of non-selections is more appropriately viewed as background
evidence in support of his accepted claim rather than as a separate,
distinct claim. The record reflects that complainant was not counseled
on other specific non-selections. Complainant, in his formal complaint,
sets forth his claim in the following fashion: "non-selection of Addiction
Therapist...failure to notify applicant of non-selection ... after filing
an EEO complaint several years previous, I have been consistently passed
over for positions ...." While complainant in a letter to the agency
dated February 20, 2007, stated, in pertinent part, that "[i]f my claim
of whistle-blowing can not stand as stated, I would still request that
a claim of a pattern of non-selection for positions ... be pursued,"
complainant did not identify other specific non-selections that he was
contesting. Based on the foregoing, we find that complainant's assertion
of a pattern of non-selections constitutes background evidence in support
of his accepted claim.
Non-Selection for Addiction Therapist
Assuming arguendo that complainant established a prima facie case of age
discrimination and/or retaliation, the record reflects that the agency
articulated a legitimate, nondiscriminatory reason for complainant's
non-selection for the position in question. The record contains an
affidavit from the selecting official (SO) for the position in question.
Therein, SO states that a committee was organized to interview the
candidates and that all candidates were asked the same questions.
The SO states that the candidates were ranked and that the selectees
had the highest scores.
The record also contains an affidavit from the Chair (C1) of the
interview panel. Therein, C1 asserts that complainant did not rank in
the top three of candidates that were interviewed. Specifically, C1
asserts that the selectees had scores of approximately 4.5 to 4.7 out of
a possible 5.0, while complainant's scores were in the 3.3 to 3.5 range.
In addition, one member of the interview panel stated, in his affidavit,
that complainant was not working currently working as a counselor,
while the selectees were working as counselors.
The Commission finds that complainant failed to establish pretext.
While the Commission acknowledges that complainant listed on his
application that he holds two Master's degrees, a review of the record
reflects that complainant has not shown that his qualifications for the
position were so plainly superior to that of the selectees to warrant
a finding of pretext.
Regarding complainant's claim that he was not notified of his
non-selection, we find that assuming arguendo that complainant established
a prima facie case of age discrimination and/or retaliation, the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
The record contains a Declaration Under Penalty of Perjury from a Human
Resources Specialist (HR1). Therein, HR1 asserts that complainant
chose to have a disposition letter pertaining to the position in question
sent to him via e-mail; however, the e-mail address was invalid and thus
complainant did not receive the letter.
The Commission further finds that complainant failed to establish pretext.
While complainant asserts on appeal that the agency should have been
able to decipher his appropriate e-mail address, this assertion is
insufficient to establish pretext.
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 finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 19, 2008
Date
1 The record reflects that two candidates were selected for this vacancy.
2 The record contains a copy of the EEO Counselor's Report. Therein,
the EEO Counselor set forth the following for claim 1 "[w]hether the
aggrieved was discriminated against in regard to [an] unidentified claim."
In addition, the EEO Counselor stated "[a]ggrieved cannot be reached by
telephone, no answer at work and his home telephone is out of service."
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0120082624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082624