0720130005
09-11-2013
Ryan Adams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ryan Adams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720130005
Hearing Nos. 540-2011-00099X, 540-2011-00131X
Agency Nos. 200P-0678-2010102990, 200P-0678-2010104679
DECISION
In conjunction with the issuance of its March 21, 2012 final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requested that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the AJ's finding that the Agency discriminated against Complainant on the basis of disability when it did not select him for the position of Program Assistant, GS-0303-06/08.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician, GS-0525-06, at the Agency's Southern Arizona VA Health Care System.
In February 2010, Complainant applied for the position of Program Assistant, GS-0303-06/08. Complainant submitted the following documentation as part of his application: (a) a February 22, 1999 letter from the Arizona Rehabilitation Services Administration (ARSA) stating, "This is to verify and confirm that [Complainant] was found eligible for [Department of Economic Security] Vocational Rehabilitation services based upon a medically documented disability that is coded severe by our agency;" and (b) a Standard Form 256 (SF-256), Self-Identification of Disability in which Complainant entered the code for "Convulsive disorder."
A three-member panel (P1, P2, and P3) reviewed the applications of the 15 candidates, including Complainant, who were minimally qualified for the position. Each panelist independently assigned a score between one and three for each of the following eight factors related to the position: (1) developed and implemented an education and training program; (2) compiled statistical data to evaluate the program and identify training needs and areas of improvement; (3) conducted business audits using electronic or paper records and claim forms; (4) provided technical assistance and support to management in Compliance and EEO matters; (5) knowledge of Medicare, Medicaid (CMS), Compliance and EEO rules and regulations; (6) communicates both orally and in writing to promote and explain programs and resolve problems; (7) deals daily with a diverse population of staff; and (8) ability to articulate complex regulatory information to a diverse audience. After averaging the scores from the three panelists, the panel interviewed the five candidates with the highest average scores. The interviewed candidates had average scores ranging from 20.7 to 16. Complainant, who had an average score of 14, did not receive an interview. After conducting interviews, the panel recommended the selectee (no disability) for the position. The selecting official adopted the panel's recommendation.
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (seizure disorder, traumatic brain injury, panic attacks, anxiety, and sleep disorder) when, on April 1, 2010, he was not selected for the position of Program Assistant, GS-0303-06/08.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. After a hearing on January 6, 2012, the AJ issued a bench decision on January 25, 2012 finding disability discrimination.
Initially, the AJ found that Complainant established a prima facie case of disability discrimination. Specifically, the AJ found that Complainant was an individual with a disability and the selectee was not. In addition, the AJ found that the panel was on notice that Complainant was an individual with a disability. Although P1 and P3 testified that they were unaware of Complainant's disability,1 the AJ found that their testimony was not credible because Complainant's application included the ARSA letter stating that he had a medically documented disability.
Next, the AJ found that each panelist articulated a legitimate, nondiscriminatory reason for not interviewing Complainant. For P1, the AJ cited his testimony that Complainant's resume failed to provide enough detailed information. For P2, the AJ cited her testimony that Complainant's resume did not mention Medicare or Medicaid compliance experience, which was one of the factors where he received a low score. For P3, the AJ cited her testimony that Complainant's resume did not include accounts receivable experience.
Finally, the AJ found that the reasons articulated by P1 and P2 were credible, but that Complainant showed that P3's reason was a pretext for disability discrimination.2 In finding pretext, the AJ noted that Complainant's resume clearly stated that he had accounts receivable experience and P3 testified that accounts receivable experience had no relevance to the application scores.
As a result of the finding of disability discrimination, the AJ ordered the Agency to provide EEO training to P3 and to post an announcement of a finding of discrimination at its Southern Arizona VA Health Care System in Tucson, Arizona. The AJ, however, did not award Complainant any compensatory damages or costs. Regarding damages, the AJ found that although P3 discriminated against Complainant in the selection process, the make-whole relief did not include an interview for the position or the position itself. After dismissing P3's scores for all the candidates and recalculating the candidates' average scores based on P1's scores and P2's scores, the AJ found that Complainant's average score was still not high enough to place him among the top five candidates.3 The AJ found that even absent the discriminatory factor (P3's scores), Complainant was still not eligible for an interview. Regarding costs, the AJ found that Complainant, in a January 11, 2012 email to the AJ, waived his right to receive the costs attributed to prosecuting the complaint.4
The Agency subsequently issued a final order rejecting the AJ's finding of disability discrimination with respect to Complainant's non-selection for the Program Assistant position.5
CONTENTIONS ON APPEAL
On appeal, the Agency contended that substantial evidence in the record did not support the AJ's finding of disability discrimination.
First, the Agency argued that the AJ erred in finding that Complainant was an individual with a record of a disability under the Rehabilitation Act. Specifically, the Agency asserted that the 1999 ARSA letter did not indicate what the impairment was, did not explain how the State of Arizona determined that the impairment was a disability, and was too remote in time to have any evidentiary value concerning whether Complainant had a disability in 2010.
Second, the Agency argued that the AJ erred in finding that the panel was aware of Complainant's record of disability. Specifically, the Agency asserted that the panelists all denied seeing the ARSA letter when reviewing the application and there was no evidence that they conspired to testify untruthfully. In addition, the Agency asserted that it was credible that the panelists missed the ARSA letter and the SF-256 because those documents were "sandwiched" in a 67-page application that contained multiple extraneous documents. Further, the Agency asserted that P3 testified that she limited her review of Complainant's application to his resume. Finally, the Agency asserted that the AJ's credibility determinations on this issue were not subject to deference because they were based on the reasonableness of the testimony rather than witness demeanor or conduct.
Third, the Agency argued that the AJ erred in finding that P3's opinion about Complainant's lack of accounts receivable experience was the reason he did not receive an interview. Specifically, the Agency asserted that P3 only testified that Complainant lacked the necessary accounts receivable experience to be successful in the position; P3 did not testify that Complainant was not interviewed because of his purported lack of accounts receivable experience and P3 did not testify that her opinion of Complainant was reflected in how she rated his application.
Fourth, the Agency argued that the AJ erred in ultimately finding disability discrimination because a finding of pretext does not necessarily compel a finding of discrimination. Specifically, the Agency asserted that the AJ did not articulate a nexus between the failure to interview Complainant and his record of disability.
Complainant did not file an appeal from the Agency's final order. Accordingly, we exercise our discretion to focus only on the issue specifically raised by the Agency on appeal.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, IV.A (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Ch. 9, VI.B.
Disability Discrimination
In analyzing a disparate treatment claim under the Rehabilitation Act, where an agency denies that its decisions were motivated by a complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, a complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy his burden of proof, a complainant must then demonstrate by a preponderance of the evidence that the agency's proffered reason is a pretext for disability discrimination. Id.
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency discriminated against Complainant on the basis of disability when it did not select him for the position of Program Assistant, GS-0303-06/08.
The record reflects that Complainant established a prima facie case of disability discrimination. As to element 1, under the Rehabilitation Act, an individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.
See 29 C.F.R. � 1630.2(g). Although the Agency argued that Complainant was not an individual with a disability under the second prong of the definition, the record reflects that the Agency had previously conceded that Complainant was an individual with a disability under the first prong of the definition. Specifically, in its motion for a decision without a hearing, the Agency listed the following as a material fact not in dispute: "Complainant is 'disabled,' as defined by the Rehabilitation Act. He has a neurological condition (seizure disorder, traumatic brain injury (TBI), panic attacks, anxiety, and sleep disorder). Agency's August 23, 2011 Motion for a Decision Without a Hearing, at 4. As to element 2, the record reflects that Complainant was referred to the panel as being minimally qualified for the position. As to element 3, the record reflects that Complainant was not selected for the position. As to element 4, the record reflects that the selectee was not an individual with a disability. Accordingly, we agree with the AJ that Complainant established a prima facie case of disability discrimination.
Regarding pretext, the record supports the following findings by the AJ: (a) P3 was aware of Complainant's disability; (b) P3's stated reason for not interviewing Complainant was the lack of accounts receivable experience reflected in his resume; (c) Complainant's resume included accounts receivable experience; and (d) accounts receivable experience was not relevant to the application scores.
As to (a), the record reflects that Complainant's application included the 1999 ARSA letter and the SF-256. ROI, at 299, 342. Although the Agency argued that the AJ erred in not crediting P3's testimony (that she was unaware of Complainant's disability) and in finding that P3 was aware of Complainant's disability, we disagree. The Agency is correct in that we do not have to give deference to the AJ's credibility determinations when, as here, such credibility determinations are not based on witness demeanor or conduct. See Whaley v. Dep't of the Army, EEOC Appeal No. 01963107 (Sept. 24, 1998); see also EEO MD-110, Ch. 9, VI.B. However, we find that the AJ's determination that P3's testimony was not credible is reasonable and consistent with the fact that Complainant's application contained documents referencing his disability.
As to (b), the record contains the following testimony by P3:
Q (AJ): So in your mind, then, was [CP's] resume not indicating that he had accounts receivable the most important reason for you for why he shouldn't have been interviewed?
A: Yes.
Hr'g Tr., at 142-43. Although the Agency argued otherwise, it appears from the quoted testimony that P3's reason for not interviewing Complainant related to his supposed lack of accounts receivable experience.
As to (c), the record reflects that Complainant's resume contained numerous references to his accounts receivable experience. Specifically, the resume stated that Complainant processed daily "AR" deposits, investigated and cleared "AR" suspense items, and performed routine reconciliations of "AR" accounts. ROI, at 280.
As to (d), the record reflects that the eight factors on which the panel evaluated the candidates' applications did not include accounts receivable experience. Id. at 186, 189-96. In addition, P3 testified that none of the eight factors had anything to do with accounts receivable experience. Hr'g Tr., at 145.
Based on the above, the AJ found that P3's reason for not interviewing Complainant was not credible and was a pretext for disability discrimination. Although the Agency argued that a finding of pretext does not necessarily compel a finding of discrimination, the AJ's disbelief of the reasons put forward by the Agency may, together with the elements of the prima facie case, suffice to show intentional discrimination. See Hicks, 509 U.S. 502, 511 (1993). The credibility of the employer's explanation is key; if an employer's explanation for the employee's treatment ultimately is not credible, that is powerful evidence that discrimination is the most likely explanation. See EEOC Compliance Manual Section 15, "Race and Color Discrimination" No. 915.003, V.A.2 (Apr. 19, 2006). Even if the employer's explanation lacks credibility, discrimination will not be found if the evidence affirmatively demonstrates that the employer's real motivation was not a protected EEO trait, but something not covered by laws enforced by the EEOC. Id. Here, the AJ found that P3's explanation for not interviewing Complainant was not credible. Moreover, there is no evidence that affirmatively demonstrates that P3's real motivation was something other than Complainant's disability. Accordingly, we agree with the AJ that Complainant demonstrated, by a preponderance of the evidence, that P3's reason for not interviewing him was a pretext for disability discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the portion of the Agency's final order which rejected the AJ's finding of disability discrimination, and AFFIRM the AJ's finding of disability discrimination. We REMAND the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to take the following remedial actions within 120 calendar days of the date this decision becomes final:
1. The Agency shall provide eight (8) hours of EEO training to P3 regarding her responsibilities under EEO laws, particularly the Rehabilitation Act;
2. The Agency shall consider taking appropriate disciplinary action against P3. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If P3 has left the Agency's employ, the Agency shall furnish documentation of her departure dates.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indicating that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at the Southern Arizona VA Health Care System copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
_9/11/13_________________
Date
1 P2 testified that she was aware of Complainant's disability prior to the selection process.
2 In her decision, the AJ stated that: (i) P3 failed to articulate a legitimate, nondiscriminatory reason for Complainant's failure to move on to the interview stage; and (ii) Complainant showed that P3's reason was a pretext for discrimination. AJ's January 25, 2012 Decision, at 7-8. Our reading of the decision reflects that the AJ found discrimination because Complainant was able to establish pretext.
3 After recalculating the candidates' average scores based on P1's scores and P2's scores, the top five candidates had average scores ranging from 21 to 17 whereas Complainant had an average score of 15.5.
4 In his email, Complainant wrote, "Due to some of the fees listed in your Order not applying to me along with my personal action of not continuously holding on to the majority of the receipts that were issued to me in the preparation process for this hearing, I have decided to waive the opportunity to receive any reimbursement for these court hearing preparation fees unless the [Agency] itself plans to charge me for any such fees."
5 On November 2, 2011, the AJ granted the Agency's August 23, 2011 motion for a decision without hearing with respect to Complainant's claims that the Agency discriminated against him on the basis of disability when: (a) on April 15, 2010, it did not consider him proficient in the core competencies of his mid-year evaluation; and (b) on July 28, 2010, it did not promote him to an Accounting Technician, GS-0525-07 position. In its final order, the Agency adopted the AJ's finding of no discrimination regarding the above claims.
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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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