0120121788
08-08-2012
Milton A. Feliberty, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Milton A. Feliberty,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121788
Agency No. 2004-0512-2010103253
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 14, 2012 final decision 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.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Specialist, GS-0201-12, at the Agency's Veterans Affairs Medical Center (VAMC) in Wilmington, Delaware.
On July 27, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of national origin (Hispanic) and sex (male) when:
1. on May 19, 2010, he was not selected for the position of Supervisory Human Resources (HR) Specialist (Talent Management), advertised under Vacancy Announcement Number MP-10-194-337704; and
2. on May 24, 2010, he was not selected for the position of Supervisory HR Specialist (Human Resource Capital Performance (HRCP)), advertised under Vacancy Announcement Number MP-10-195-337756.
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On February 14, 2012, the Agency issued the instant final decision, finding no discrimination. Without addressing the prima facie case analysis, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination. Specifically, the Agency found that the selectees had specific relevant experience, whereas Complainant did not.
Regarding claim 1, the former Chief of HR Management Service was the selecting official (SO) for the position of Supervisory HR Specialist (Talent Management). SO stated that a staffing specialist (SS) reviewed the candidates' applications and made the determination about the minimum qualifications of the candidates. SO stated that SS then generated a series of Merit Promotion Certifications, at least one of which listed Complainant.
SO further stated that she reviewed the candidates' experience as well as their responses to the Knowledge, Skills and Abilities (KSAs) "to the narratives that they provided to determine the top candidates that I would ultimately interview." SO stated that there were different certificates for the subject position and that "[the candidates] were separated based on, number one, their eligibility, what eligibility they were using to apply under the Merit Promotion Certificate. Because Merit Promotion is not open to all U.S. citizens you have to have some sort of status in order to apply for that type of announcement. For example, you may be a veteran and maybe able to apply under VEOA. You may be a current competitive employee, federal employee. In this case, [Complainant] was under a different certificate because he was a VA employee and the VA employees are placed on a separate certificate."
SO stated that once she made her "best qualified" determinations, she interviewed all of the candidates from the particular certificate where they were listed; however, she was not required to interview all candidates from all certificates. SO stated that she selected a named male selectee for the subject position using a Schedule A appointing authority due to his status as a thirty percent disabled veteran. SO stated that she did not interview Complainant for the subject position because "he was not on the certificates that I chose to use for the position." Moreover, SO stated that Complainant's national origin and sex were not factors in her determination to select the selectee for the subject position.
The record reflects that a review of Complainant's resume showed that he has approximately ten years of experience as a HR Specialist with the Agency. The record further reflects that a review of the selectee's resume showed that he has over twenty years of HR experience, working in various HR Specialist positions, both as a HR Manager and a Recruiter. The selectee is currently pursuing a Master's degree in Business Administrative.
The HR Specialist (HRS) stated that the guidance for the selection process used to fill the positions comes from the Agency's VA Maryland Healthcare System policy 512-05HR-014 dated August 2009. HRS further stated that each service uses a crediting plan. HRS stated that all applicants filled out an on-line application and answered self-assessment questions about their KSAs related to the subject position. HRS stated that depending on what information the candidates provided, they were placed on different certificates before referral to SO. For instance, HRS stated "if I were to apply for a position, I could say I'm a current government employee, I'm a thirty percent or more disabled, and I think a VRA, depending on the grade, VRAs can be considered up to GS-11, and I could be considered under VR. So if an applicant selects all of those that applies to them, then they can be referred on all of those." HRS stated that the lists of qualified candidates are then provided to the SO who makes a determination of the best qualified applicants by either evaluating the resumes or conducting performance based interviews.
HRS stated that the selectee was chosen based on an excepted service appointment Schedule A hiring under authority of 5 C.F.R. � 213.3102(u) which provides for a non-competitive appointment without going through the certification process. Specifically, HRS stated that the selectee was selected "off of a Schedule A. And . . . the way the Schedule A works, if a person has a disability [he or she] can apply for a position - - well, if they know that the agency has a particular opening, they can bring in their documentation and be considered for a position without applying to the actual announcement. So, he was selected as a Schedule A appointment, which is an excepted service."
Regarding claim 2, SO stated that she was also the selecting official for the position of Supervisory HR Specialist (HRCP). SO stated that she used the same selection process as claim 1. SO further stated that the questions were similar but "some of the skills were a little bit different based on the knowledge required for that particular supervisory position..." SO stated that after reviewing the candidates' application packages, she selected a named female candidate because "she was a better candidate based on her experience and her responses to the KSAs."
The record reflects that prior to her selection to the subject position, the selectee worked as a Supervisory HR Specialist at the Agency's VAMC in Perry Point, Maryland, supervising employees, independently managing the pay and compensation program, providing technical HR guidance to staff within and outside the VAMC, and training internal and external staff. The record reflects that before her employment at the Perry Point VAMC, the selectee worked in various HR related positions from September 2003 through November 2008, including as a Pay and Compensation Specialist, a Labor/Employee Relations Specialist and a HR Specialist.
SO stated that she did not interview Complainant for the subject position because his name did not appear on the certificate of best qualified candidates, based on his experience and responses to the KSAs.
Complainant did not make any new contentions on appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 Construction 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 Texas Department of Community 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 fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 8, 2012
__________________
Date
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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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