0120113386
08-14-2013
Michael Lucas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael Lucas,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113386
Hearing No. 450-2011-00069X
Agency No. 200P-0519-2010103077
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 9, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On June 11, 2010, Complainant, a job applicant, filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of age (over 40) and in reprisal for prior protected activity when:
1. he was not selected for the position of Police Officer, GS-0083-6, Merit Promotion Announcement (MPA) 2010-30tdt at the Agency's West Texas VA Healthcare System in Big Spring, Texas; and
2. he was not selected for Police Officer, GS-0083-06, Announcement MPA 2010-64tdt at the West Texas VA Healthcare System.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On May 31, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. The AJ found that in regard to claim 1, Complainant and two other applicants applied for the position of Police Officer under MPA 2010-30tdt, and were referred to the selecting official for consideration. A three-member interview panel was assembled and was composed of two police officers and one non-police member. The AJ noted that the interviews were conducted by telephone. Complainant was ranked third by the panel. Following the interviews, the selecting official selected the selectee because of his extensive law enforcement experience and highest interview score.
One of the three-member panelists (P1) stated that the panel was advised to use the Performance Based Interview (PBI) questions which were selected by the panel from the PBI website. P1 stated that the panel was also advised to set up a rating system for each question based on the PBI website. Following the interviews, P1 stated that she felt that the selectee was better qualified because he had more extensive law enforcement experience than Complainant, and "was also extremely familiar with the VA Police concept of law enforcement than the complainant."
P1 stated that she felt that Complainant was not selected for the subject position because he "has a 'badge and gun' mentality, as far as law enforcement is concerned, which is not the concept the VA Police take in law enforcement and based upon his answers, he would not change his thinking as far as law enforcement is concerned."
Another panelist (P2) stated that, after the interviews, the panelists were asked to meet with the selecting official. P2 stated that the selecting official "asked us, based on the interviews, which candidate we would recommend. I told her based on the interview alone, I would recommend whoever scored the highest on my interview sheets." P2 stated that she recommended that the selectee be selected because of his highest score.
Regarding claim 2, the AJ noted that Complainant and one other applicant applied for the position of Police Officer, GS-6, advertised under MPA 2010-64tdt. Both applicants were considered qualified and were referred to the selecting official for consideration. The AJ found that on October 15, 2010, the Chief returned the certificate of eligible candidates to Human Resources. The Chief left his position shortly thereafter.
The AJ noted that the Human Resources Specialist (HR Specialist) stated that on October 15, 2010, the former Chief returned the certificate of eligible to Human Resources. The HR Specialist stated that while the Chief did not make a selection, he requested "we seek a broader pool of applicants." The HR Specialist stated at the time former Chief was replaced by the new Chief, the new Chief asked Human Resources "to reissue the certificate since his service was so short-handed." The HR Specialist stated that the new Chief later returned the certificate noting that he had selected the selectee for the subject position.
The AJ further found that on November 10, 2010, a named Agency official was appointed as the Acting Police Chief, and became the permanent Chief on January 16, 2011. The record reflects that on December 17, 2010, the certificate of eligible candidates was re-issued to the Police Services. Complainant and the other applicant were the only ones on the certificate.
Further, the AJ determined that the new Chief interviewed both candidates by telephone. The record reflects that Complainant received an overall score of 14 while the other applicant received an overall score of 23. Following the interview, the Chief selected the other applicant, asserting it was based on his extensive law enforcement and military experience.
The AJ noted that the new Chief stated that, at the time he was appointed as Chief, he received information from Human Resources about the certificate of eligible for the police officer position. Specifically, the new Chief stated "the only information I received from Human Resources office before the interview was a list of candidates - the best qualified list. I did not know the ages or prior EEO activities of either candidate."
The AJ noted that the new Chief stated that he chose the selectee for the subject position because he was best qualified. Specifically, the new Chief stated that the selectee "had five years US Marine police experience including not just Basic Law Enforcement but also Battlefield Circulation control, Enemy Prisoner of War Handling and Marksmanship Instructor. These are skills I need in the police department...he had solid answers to the questions when asked about a difficult situation faced with a supervisor or subordinate and he related a time he had to make a death notification and how difficult it was to be the person making notification."
The new Chief stated that he did not select Complainant for the subject position because he was not the best qualified. The new Chief further stated that Complainant's answers to the interview questions "made me feel uncomfortable. He admitted breaking rules, and going off property. I felt that the Complainant basically did what he thought he should do, instead of following proper procedures. I was concerned because VA's jurisdiction is concurrent but the boundaries are very specific." The new Chief stated at one point Complainant admitted that he went off property "at one place to look at places where he knew there was a lot of drug activity. He said there was a weakness in the fence close by. To me this was a big red flag due to the restrictive nature of our jurisdiction."
Based on this evidence, the AJ concluded that Complainant had not proven that his non-selections were based on his age or the result of retaliatory animus. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's age or prior protected activity.
Based on careful review of the record and consideration of all arguments presented on appeal, we AFFIRM the Agency's final order implementing the AJ's decision finding no discrimination.
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
August 14, 2013
__________________
Date
2
01-2011-3386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113386
6
0120113386