01a04699
11-17-2000
Ronald A. Davies, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Ronald A. Davies v. Department of Veterans Affairs
01A04699
November 17, 2000
.
Ronald A. Davies,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04699
Agency No. 983473
Hearing No. 170-A08110X
DECISION
Ronald A. Davies (complainant) timely initiated an appeal from the
agency's final order concerning his equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of race
(Black) and sex (male) when he was not selected for the positions of
Program Specialist, GS-340-12, pursuant to agency vacancy announcement
no. 69-98 or Program Specialist, GS-301-12, pursuant to agency vacancy
announcement no. 70-98.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, an Automated Data Processing
Applications Coordinator (ADPAC) in the Health Administration Section
of the Resource Management Service at the agency's Philadelphia,
Pennsylvania Medical Center, filed a formal EEO complaint with the
agency on November 2, 1998, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
race and sex discrimination because he applied and was qualified for
the positions in question, but was not selected for either position,
each of which was filled by a white female.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ noted
that the selecting official (SO) maintained that complainant demonstrated
a lack of willingness during his interview, as well as by failing
to appear at a previously scheduled interview and failing to submit
�KSAOs�<2> as part of his application. SO noted that the selectees
for both positions provided detailed information about themselves
during the interview and in their applications and that both had good
supervisory skills. SO noted that one of the positions was essentially
an assistant to him and the other was a �business application� position
and stated that positions required occupants who were �self-starters�
and able to work independently. After reviewing the qualifications
of the applicants, including what he learned during the interviews,
SO determined that the selectees were the best qualified applicants.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that
complainant neither challenged the qualifications of the applicants
selected nor asserted that his own qualifications so vastly exceeded
those of the selectees as to compel a finding of discrimination. The AJ
noted that complainant did not demonstrate any gender bias on the part
of SO and that even if SO commented that he desired �to help out a young
black brother,� as alleged by complainant, this did not demonstrate an
animus towards complainant's race.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the investigation was insufficient
because interviews were conducted over the telephone and the investigator
failed to ask follow-up questions when SO did not provide reasonable
responses. Complainant also contends that the AJ erred in not holding a
hearing, noting that there are numerous facts in dispute. According to
complainant, these disputed facts include, among other things: whether
SO made reasonable attempts to interview complainant, given that he knew
complainant was on vacation; whether SO had pre-selected a candidate and
therefore was not concerned with providing complainant with an opportunity
to interview; whether providing KSAOs is a requirement when applying
for a position; and whether SO interviewed all the candidates in the
same manner.
The agency requests that we affirm its final order.
FINDINGS AND ANALYSIS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where it has been determined that, given applicable substantive law, no
genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). An issue is "genuine" if the evidence is such
that a reasonable fact-finder could find in favor of the non-moving party.
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the
context of an administrative proceeding under Title VII, summary judgment
is appropriate if, after adequate investigation, complainant has failed to
establish the essential elements of his or her case. Spangle v. Valley
Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). In determining
whether to grant summary judgment, the AJ's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Anderson, 477 U.S. at 248-49. An AJ's decision on summary judgment is
subject to de novo review by the Commission. See 29 C.F.R. � 1614.405(a);
Equal Employment Opportunity Management Directive for 29 C.F.R. part 1614
(EEO-MD-110), 9-16 (November 9, 1999).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that while
complainant established a prima facie case of race and sex discrimination,
he failed to establish that the agency's explanations were a pretext
to mask unlawful discrimination. Even assuming that the contentions
raised by complainant on appeal are true, e.g., that SO was aware that
complainant was on vacation and that SO pre-selected candidates prior
to speaking with complainant, there is no evidence to indicate that
the selections were based on complainant's race or sex. Complainant
acknowledged that he did not appear for a lunch-time interview and
did not call SO to indicate that he could not make it. Whether or not
complainant had a justification for this behavior, SO's testimony that
this did not reflect well on complainant remains undisputed. Moreover,
while the agency did not dispute the complainant's claim that failure to
provide KSAOs cannot justify a non-selection, it is also undisputed that
KSAOs provide a selecting official with information about a candidate's
abilities, that complainant did not submit such information, and that when
questioned by SO about this, complainant indicated that he believed SO
was not conducting the interview in the best manner. SO testified that
this behavior on complainant's part demonstrated his unwillingness to
cooperate and lack of flexibility, qualities that were in conflict with
the duties of the positions in question, which required �self starting�
and independent work. SO also testified that both selectees were very
well-qualified for the positions and that he believed that they were
the best candidates.
In attempting to establish that SO's explanation regarding his
uncooperative attitude is a pretext for race and sex discrimination,
complainant offered little. He noted that SO usually hired females
and that SO told him that he desired �to help a young black brother.�
However, we agree with the AJ that neither of these allegations, even if
true, establish that race or sex discrimination motivated the selections.
Moreover, complainant failed to establish that his qualifications were
observably superior to those of the selectees. In attempting to do so,
complainant made vague references to his experience and connections with
agency officials, specifically highlighting his computer expertise.
However, the record confirms SO's testimony that both selectees are
well-qualified for the positions and complainant offered nothing to
indicate that he was the observably superior choice.
As a final matter, we note that the AJ failed to address complainant's
claim that the investigation of his complaint was inadequate. See
EEO-MD-110, at 5-25. After a careful review of the record, however, we
find no evidence to support complainant's allegation. There is nothing
forbidding an investigator to do telephonic interviews and a review of the
affidavits submitted in this case reveal that the appropriate questions
were asked. Complainant has not specified any material issues that were
not explored, nor has he established that the investigative process used
affected the outcome of his complaint or was motivated by his race or sex.
Finally, we note that the agency responded to complainant's allegations
of improper processing and added a record of this response to the subject
complaint file, as required by EEO-MD-110, at 5-26 .
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 17, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Knowledge, Skills and Abilities, Employee Supplemental Qualifications
Statement.