[Redacted], George D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2021003681 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 George D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003681 Agency No. 200H-0005-2020104907 DECISION On June 14, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 3, 2021 final decision concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facility Engineer, GS-0801-13, in the Agency’s Office of Information Technology in Philadelphia, Pennsylvania. On September 9, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (physical), and age (62) when, on June 12, 2020, he received notice that he was not selected for the position of Supervisory Facilities Engineer, GS-14, located in Philadelphia, Pennsylvania, under Vacancy Announcement No., CARX-20-10810406-ASm-DH. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003681 2 The selecting official for the position was the Director, Data Center Facilities, Connectivity and Physical Security, National Data Center Operational and Logistics. (Caucasian, Year of Birth 1979, no stated disabilities) (SO). The SO was Complainant’s second line supervisor. He acknowledged that he was aware of Complainant’s race, but not his age or disability. Complainant applied for the position of Supervisory Facilities Engineer, GS-14, under vacancy announcement CARX-20-10810406-ASm-DH.2 Nine candidates, including Complainant, met the minimum qualifications for the position and were referred by Human Resources for consideration. The record shows that the SO utilized the Direct Hire Authority for the selection at issue. Report of Investigation (ROI), at 59. The Direct Hire Authority does not require a screening panel. Nevertheless, a panel was selected which consisted of three Panel Members (PMs), who reviewed and evaluated the resumes and scored the candidates. The candidates with the highest scores were invited to be interviewed. The highest scoring candidate (Caucasian, unknown disability or age) received a score of 33.92 out of 43.25. Complainant was ranked seventh, with a score of 25.42 out of 43.25. Complainant averred that the Vacancy Announcement was intentionally reposted under the Direct Hire Authority “to subjectively minimize [his] qualifications” and eliminate Veterans preference. Complainant believed that he was intentionally ranked low to render him ineligible for an interview, which was a prerequisite for selection. The SO averred that, although he was not required to do so under the Direct Hire Authority, he chose to “use the internal control measures of a panel to select the best candidate overall.” The record shows that the selectee was a younger Caucasian male. The SO averred he was unaware of the selectee’s age or any disability. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination as alleged. This appeal followed. 2 The record shows that there had been two announcements for the position at issue. The second announcement had a clarification that stated that “Veterans who are preference eligible may apply under the Veterans Employment Opportunity Act (VEOA)” and referenced the announcement number as CARX-20-10742781-KMc, Control Number 562015600. Report of Investigation (ROI) at 81. This announcement was open from May 7, 2020 to May 13, 2020. Significantly, the Job Announcement CARX-20-10810406-ASm-DH, Control Number 567629500, included a Clarification, which referenced “Veterans Preference.” The announcement stated “Since the Direct Hire Recruitment Authority is being used, traditional Veterans Preference rules do not apply. Qualified Veterans will, however, be given full consideration for this position.” ROI at 66; Tab 7-2, 7-15. 2021003681 3 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. (Aug. 5, 2015) (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”). Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination. In this case, however, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The SO testified that he chose the candidate he deemed the best qualified and who had the highest overall ranking and the highest score to fill the vacancy. By comparison, Complainant was ranked seventh out of the nine candidates under consideration. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant averred that he believed that the Agency used the Direct Hire Authority “to subjectively minimize Complainant’s qualifications and bypass granting him Veterans preference.” He also believed his qualifications and mission experience were superior, because he had a Master’s degree and had held many engineering positions. The record shows that the selectee, prior to his selection, had a 25-year career with the Agency, and had served previously as the Supervisory General Engineer. 2021003681 4 In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). Further, as Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. Accordingly, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2021003681 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2021003681 6 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 27, 2022 Date