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

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2021003934 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luigi H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003934 Agency No. 2003-0549-2020106053 DECISION On June 30, 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 21, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 Supervisory Police Office, GS-0083-09 at the Agency’s North Texas Health Care System in Dallas, Texas. On November 27, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (YOB 1958) when on June 10, 2020, Complainant was not selected for the position of Deputy Chief of Police Service, GS-11, under Job Announcement No. CBDU-108-18856-20-TGP.2 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. 2 The Agency dismissed an additional claim for untimely EEO counselor contact. The Commission does not find any basis to disturb the Agency’s dismissal decision. 2021003934 2 Complainant applied for the Deputy Chief of Police position under Job Announcement No. CBDU-108-18856-20-TGP108061832 in May 2020. Complainant was deemed qualified for the vacancy and was referred for further consideration. Complainant’s second level-supervisor (S2), the Chief of Police, was the selecting official for the position. The Agency assembled a three- person panel of three current Deputy Chiefs of Police working at different locations for the Agency: South Texas (PM1), Amarillo (PM2), and Texas Valley Coastal Bend (PM3). The panel reviewed, interviewed, and scored the applicants’ resume and interview. Applicants were rated in three areas: (1) prior education and work experience; (2) knowledge skills and abilities, as demonstrated in the resume; and (3) performance during the interview. The rating sheets show each section was subdivided with additional qualifications and applicants could receive a designated maximum point for each qualification. The rating sheets listed the same standardized questions asked during the interview for each applicant. The panel recommended, and S2 selected, the applicant with the highest combined score (Selectee) for the position. On June 11, 2020, Complainant was notified he was not selected for the Deputy Chief of Police position. All three panel members gave Selectee significantly higher scores for his interview than Complainant. PM1’s notes from the interview show for one answer, Complainant “really did not answer the question. Was just rambling. Hard to follow the answer.” For another question PM1 wrote, “Good story. Did not answer the question. Just telling things that are going on.” Meanwhile, PM1’s notes from Selectee’s interview stated: “The best interview of the day by far” “Very good speaker” “Excellent answer.” PM1’s notes of Complainant and Selectee’s answers show the differences in their interview responses and support Selectee’s higher interview scores. PM3 testified Selectee had excellent knowledge of supervisory and managerial qualifications that stemmed from executive leadership, physical security, VA Police Training Program Compliance, and leading a police program during the absence of senior leadership. Selectee further demonstrated his knowledge with specific examples such as when he explained the new process utilizing an upcoming change with physical security standards (Physical Security); his awareness of the Office of Security and Law Enforcement Inspection Guide Standards (Police Program Compliance); his various training certificates in accordance with Law Enforcement Training Center training standards (Police Training Oversight); and when he showed his ability to analyze departmental needs and develop appropriate action plans. Complainant alleged Selectee was hired to fulfill a program directive to validate the Chief of Police Leadership Developmental Program, alleging Police Chiefs were handpicking police officers for the course and that S2 offered the course to a younger supervisor, but not to him. 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 he was subjected to discrimination as alleged. 2021003934 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 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). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination, the Commission finds, as described above, the Agency met its burden of production and articulated legitimate, non-discriminatory reasons for its actions. The scoring matrixes filled out by each panel member, show Complainant and Selectee were interviewed with the same questions and rated on the same point system; their resumes were evaluated on the same standardized point system. Selection was based on the applicants’ highest overall scores, accessed in the three categories previously listed. Selectee scored better in the questions and resume portions than Complainant and a third applicant, and PM1’s interview notes corroborate Selectee’s higher resume scores. 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). 2021003934 4 In non-selection cases, Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Aside from Complainant’s conclusory allegations that he was not selected because of his age, Complainant failed to establish that the stated reasons for his nonselection were pretext for discrimination. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Complainant has presented no evidence demonstrating that his qualifications were plainly superior to those of the Selectee. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s 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 age was a factor in any of the Agency's actions. Aside from Complainant’s conclusory allegations and speculations, Complainant has failed to establish that the Agency’s reasons were pretext for discriminatory animus. 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. CONCLUSION After a review of the record in its entirety and contentions on appeal, including those not specifically addressed herein, 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 (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. 2021003934 5 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. 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. 2021003934 6 The court has the sole discretion to grant or deny these types of requests. 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 28, 2022 Date