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

Equal Employment Opportunity Commission

Dec 5, 2022

Appeal No. 2022000571 (E.E.O.C. Dec. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miles N.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000571 Hearing No. 430-2019-00229X Agency No. 2004-0652-2018102566 DECISION On November 10, 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 October 20, 2021 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Maintenance Worker, GS-8, at the Agency’s McGuire Medical Center in Richmond, Virginia. Believing that he was subjected to discrimination based on race (African American), disability, and reprisal for prior protected EEO activity, Complainant filed a formal EEO complaint. Specifically, Complainant alleged he was discriminated against when: 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. 2022000571 2 1. On January 8, 2018, he was notified of his non-selection for the Maintenance Mechanic (Painter), VHA-652-18-MVM-2024107-BU position; and, 2. On January 18, 2018, he was notified of his non-selection for the Maintenance Mechanic, VHA-652-18-MVM-2023920-BU position.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case, however, determined sua sponte that the complaint did not warrant a hearing and issued a “Notice of Intent to Issue a Decision without a Hearing” on September 8, 2021. After receiving responses from the parties, on October 14, 2021, the AJ issued a decision finding no discrimination. Thereafter, the Agency issued a final order adopting the AJ’s finding of no discrimination. Complainant filed the instant appeal. On appeal, Complainant’s attorney argues that the AJ’s decision “ignores the lengthy history of discrimination in this department at the Agency and against Complainant,” noting that Complainant was placed in his current position as the result of an earlier EEO complaint and settlement. Complainant contends that, due to this history, the Agency’s proffered reasons should not be given deference. In response, the Agency reiterates the legitimate, non-discriminatory reasons it did not select Complainant. Regarding the Painter position (claim (1)), the Agency states that after reviewing all application packages, those applicants who scored 42 points or higher, out of 100, were given phone interviews. The phone interviewees were also scored, and those who scored above 45, out of 65, were interviewed in person. The Agency states that interview notes reflected that Complainant was unable to correctly answer two of the questions posed and provided incomplete answers for approximately five other questions. Complainant’s responses indicated that he did not have an accurate and thorough knowledge of painting and its applications. He received the second lowest score, out of seven individuals given phone interviews. Similarly, regarding claim (2), the Agency explained that while Complainant obtained the score needed to receive a phone interview, his performance during the interview was lacking. The Agency asserts that Complainant was ranked eighth out of the twelve candidates given phone interviews. 2 Complainant also raised a claim of harassment that was dismissed on the grounds that it was not counseled nor like or related to a matter that was brought to the attention of an EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2). The AJ noted that Complainant did not oppose the dismissal of the claim while the matter was at the hearing stage. Likewise, as Complainant does not raise the claim on appeal, we shall not consider it herein. 2022000571 3 ANALYSIS AND FINDINGS Standard of Review 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both 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”). Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, while Complainant argues that the selecting official’s credibility is at issue, he fails to provide any details or evidence in support of his belief. 2022000571 4 Complainant has not pointed to any material facts in dispute. Therefore, we find that the AJ’s decision to issue a decision without a hearing was proper. A claim of disparate treatment based on indirect evidence is 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. 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. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the Agency references Complainant’s scoring during the selection process as the reason for not choosing him for either vacancy. For each vacancy, a panel was assembled to review resumes, perform interviews, conduct reference checks and make recommendations to the Selecting Official.3 Regarding the painter vacancy (claim 1), the panel was comprised of an engineering technician, a locksmith, two painters, and an administrative officer. The resumes were scored by each panel member, resulting in a “total” score, as well as an “average” score. Of the 22 candidates, the top score received a total of 284 and an average of 71. Complainant’s resume was scored at 171 points, and an average of 43. This score did enable him to receive a phone interview, along with 6 other candidates. The phone interview scores ranged from 234 points to 139. Complainant was ranked second to last, with a score of 146. Consequently, Complainant was not included in the top group of four given in-person interviews. The phone interview included technical questions regarding patching sheet rock, painting in a medical facility safely, the process for removing wallpaper, painting steel, and how to handle mistakes. 3 The same individual was the selecting official for both vacancies. He had been Complainant’s third and fourth level supervisor. 2022000571 5 Panel members attested that the selectees provided more complete and accurate answers than Complainant. In contrast, Complainant’s responses needed to reflect a more accurate and thorough knowledge of painting and applications. Regarding the Maintenance Mechanic position (claim 2), 21 candidates applied for the vacancy. The panel was comprised of a Maintenance Mechanic Leader, a Maintenance Mechanic, a General Engineer, and the administrative officer that participated in the panel for the painter position. The resumes were scored by the panel against eight “resume topics” including experience in carpentry, drywall/plaster, flooring, doors/windows, locksmith, and masonry. The top resume received 316 points, while Complainant’s resume was scored at 120 points. He did, however, rank within the top 13 (Complainant was ranked 12th out of 21) and therefore given a phone interview. The interview scoring matrix reflects that Complainant ranked 8th out of 12 candidates interviewed.4 Therefore, we find that the Agency has met its burden in offering a legitimate, non- discriminatory reasons for not selecting Complainant for either position. The burden now shifts to Complainant, to establish that these reasons were pretext to mask unlawful discrimination. As noted above, Complainant argues broadly that the scoring is “plainly not credible” and that there was “pre-selection bias”. However, he has not provided any specific evidence in support of his assertions. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Similarly, Complainant’s contentions that he was previously subjected to discrimination is insufficient to establish that his non-selections in the instant case were discriminatory. Complainant has not shown any connection between his protected bases and the Agency’s decisions not to select him. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order, implement the AJ’s finding of no discrimination or unlawful retaliation. 4 One candidate that was offered a phone interview withdrew from consideration. 2022000571 6 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 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). 2022000571 7 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. 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 December 5, 2022 Date