Adam D.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 9, 2018

0120162342 (E.E.O.C. May. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adam D.,1
Complainant,

v.

Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162342

Agency No. 200I-VI07-2015104012

DECISION

On July 12, 2016, 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 28, 2016, 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. 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 Purchasing Agent,
GS-07, at the Agency’s Medical Center in Augusta, Georgia.

On September 3, 2015, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his race (African-American), sex (male), age (53), and
in reprisal for his prior protected EEO activity under Title VII and the ADEA when on or about
June 1, 2015, he learned that he had not been selected for the position of Supervisory Purchasing
Agent, GS-1105-8.

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.
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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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reveals that Complainant and the selectee (Causasian male, age unknown)
were on a certificate of candidates who were qualified and interviewed by a three-member panel.
The candidates were rated and ranked based on their responses to the performance-based interview
questions. In terms of the interview panel members, panel member 1 (PM1) scored Complainant
with 41 points and the selectee received 42. Panel member 2 (PM2) issued 38 points to
Complainant and 39 to the selectee. The Agency stated that panel member 3 (PM3) scored
Complainant with 41 points and the selectee with 42.2

The Agency determined that the selecting official and the interview panel members provided
legitimate, nondiscriminatory reasons for Complainant’s nonselection. PM1, who was
Complainant’s non-supervisory manager, stated that she rated the candidates primarily on the
interview process and that she also considered their work performance. The selecting official
stated that he reviewed the scoring interview panel members’ scoring sheets, the candidates’
applications, resumes, technical reports, and performance appraisals. The selecting official stated
that the selectee’s application materials indicated that he performed well in all aspects of his
required duties and assignments as a Purchasing Agent, as reflected in his technical reports and
performance appraisals. According to the selecting official, Complainant’s principal deficiencies
were his difficulties meeting department/Veterans Integrated Service Network (VISN) goals.

The Agency stated that Complainant attempted to establish pretext by arguing that he was better
qualified than the selectee based on his superior skills and abilities. The Agency noted that
Complainant stated that he has longer tenure within the department, possesses a Bachelor’s degree,
is a retired veteran and manager, and has more relevant workforce experience. The Agency
rejected this argument noting that the selectee performed his duties and assignments in an
exemplary manner, as evidenced by his technical reports and performance appraisals. The Agency
did not regard Complainant’s qualifications as plainly superior and stated that the selectee met the
requisite qualifications, including education and experience for the position. The Agency noted
that the selectee scored one point higher than Complainant among each of the panel members,
including PM1, who was familiar with Complainant’s qualifications because she was his non-
supervisory manager.

The Agency noted that Complainant claimed that the selectee was preselected for the position
because he is the stepfather of PM2’s grandson. The Agency discerned no independent evidence
to support this argument. According to the selecting official, he was aware of the familial
relationship, but it did not factor into his selection decision. The Agency stated that the selection

2 A review of the record reveals that PM3 scored Complainant 41 points and the selectee with 39
points.
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decision involved a standardized application process and candidate rating system. The Agency
asserted that even if preselection occurred, there is insufficient evidence to establish that it was
based on age, race, sex, or reprisal.

With regard to the claim of age discrimination, the Agency noted that the record does not contain
the selectee’s age.3 The Agency stated that Complainant asserted that the selectee is substantially
younger and has much less critical work experience. However, the Agency determined there is no
evidence that would support a finding that age was a motivating factor in the selection decision.
As for the claim of reprisal, the Agency observed that Complainant based his argument on his
alleged refusal to violate Title VII and Merit Promotion principles when he sat on interview panels
and failed to follow discriminatory instructions from management. Complainant stated that the
selecting official and PM2 factored personal biases and stereotypes in their consideration of a
retired African-American male candidate for a position, and instructed the panelists to issue lower
scores to candidates that management did not want. In the other instance cited by Complainant,
PM2 allegedly stated about a female candidate that she would probably be like another female
employee and “sound ghetto on the telephone.” Complainant maintained that afterwards, PM1
stated to him “didn’t [the selecting official] tell you to rate the candidate low?” The Agency noted
that the selecting official denied that he made these attempts to influence the selection process.
The Agency determined that Complainant did not offer evidence in support of these claims.

Another incident that Complainant claims led to his retaliatory non-selection involved his
disagreement with the selecting official concerning the distribution of work assignments and the
implementation of the leave policy. The Agency, however, rejected Complainant’s argument
concerning the work assignments in light of the selecting official’s explanation that the unit was
short of employees, and the workload was reviewed and adjusted to accommodate the needs of the
service and personnel. As for the leave policy issue, the selecting official asserted that leave was
provided in accordance with the Master Agreement. The Agency determined that Complainant
did not establish reprisal. The Agency final decision concluded Complainant had not established
that he had been discriminated against. This appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was plainly superior to the selectee in terms of
qualifications. Complainant states that he has a Bachelor’s Degree, approximately fifteen years
with the Agency, and is a retired Air Force veteran. Complainant states that the selectee is
approximately twenty years younger than him and has less relevant experience. According to
Complainant, the Agency’s policies and practices disproportionately adversely impact African-
American males. Complainant maintains that the selecting official injected subjective discretion
such as personal bias, stereotypes, favoritism, and possibly nepotism to disadvantage him.
Complainant maintains that PM1 failed to obtain the candidates’ resumes and thus the panel issued

3 The Agency is cautioned that it was required to develop an impartial and appropriate factual
record upon which a fact-finder may make findings with respect to Complainant’s claims. See 29
C.F.R. § 1614.108 (b). That should include the age of the selectee when an age claim is alleged.
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its ratings without resumes. Complainant states that the selecting official noted the selectee’s
exemplary performance but did not compare the selectee to him. Complainant notes that he
received a performance award for superior performance in December 2014. Complainant argues
that the fact that the interview panel was not asked to make a recommendation suggests that
preselection occurred to prevent a qualified African-American such as him from being selected.
Complainant notes that PM1 stated that she considered work ethics but he questions what metrics
were utilized to conduct this assessment. Complainant states that, contrary to the Agency’s factual
finding in its decision, PM3 actually scored him higher at 41 points to the selectee’s 39 points.
With regard to his reprisal claim, Complainant argues that his refusal to comply as a panelist with
the selecting official’s instructions led to the instant non-selection.

In response, the Agency asserts that Complainant’s principal deficiency was difficulty in meeting
department/VISN goals, which was an area where the selectee was very strong. As to
Complainant’s contention that he was more qualified based on experience, the Agency maintains
that number of years of experience does not necessarily make an individual more qualified than
another employee. With regard to Complainant pointing out that he received a superior
performance award, the Agency asserts that this ignores the superior performance evaluation the
selectee received in comparison with Complainant. The Agency disputes that preselection
occurred and states that Complainant’s argument suggests nepotism occurred rather than
discrimination. The Agency asserts that Complainant has offered no evidence to support his claim
that the selection process disproportionately adversely impacts African-American males. The
Agency maintains that it provided the information it utilized to rate the candidates. According to
the Agency, the selectee had an overall higher score using the metrics, and his performance
evaluations were better.

ANALYSIS AND FINDINGS

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). He must generally 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. Co. 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. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in
protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he
was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
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Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination under
each of the alleged bases with regard to his nonselection. The Agency explained that its selection
choice reflected that the selectee’s application materials indicated that he performed well in all
aspects of his required duties and assignments as a Purchasing Agent, as evidenced in his technical
reports and performance appraisals. According to the selecting official, Complainant’s principal
deficiencies were his difficulties meeting department/VISN goals. We find that the Agency
articulated legitimate, nondiscriminatory reasons for its selection decision.

Complainant maintains that he was more qualified for the Supervisory Purchasing Agent position
based on his experience and education. It is clear that Complainant has impressive credentials that
merited consideration for the position. However, additional years of experience and his Bachelor’s
Degree do not necessarily establish that he was more qualified than the selectee. The record
reflects that the selectee was regarded favorably based on his record of strong job performance and
work ethic. The selectee also did better than Complainant overall in the interview panel’s ratings.
We find that a comparison of Complainant’s credentials with those of the selectee does not support
Complainant’s argument that his qualifications were observably superior, and therefore a finding
of pretext is not warranted.

Complainant contends that the Agency’s policies and selection procedures had a disparate impact
on African-American males. To establish a prima facie case of disparate impact, Complainant
must show that an agency practice or policy, while neutral on its face, disproportionately impacted
members of the protected class. This is demonstrated through the presentation of statistical
evidence that establishes a statistical disparity that is linked to the challenged practice or policy.
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present
“statistical evidence of a kind and degree sufficient to show that the practice in question has caused
the exclusion”). Specifically, Complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id. The burden is on Complainant to show that “the facially neutral
standard in question affects those individuals [within the protected group] in a significantly
discriminatory pattern.” Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v.
Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).

Complainant claimed in his formal complaint that the Agency’s subjective decision-making during
the selection process, mixed with discriminatory attitudes, disparately impacts African-American
males. Upon review of the record, the Commission finds that Complainant, who carries the initial
burden of proof, has failed to provide sufficient evidence to establish a prima facie case of disparate
impact. Complainant’s argument that the Agency’s reliance on subjective criteria during the
selection process caused a disparate impact is generalized, vague and insufficient. Complainant
has failed to articulate a facially neutral policy or practice that would cause a statistical disparity.
Complainant needed to identify a policy, not just his generalized belief that the Agency committed
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discrimination. This contention of disparate impact, without more specificity, does not meet
Complainant’s prima facie burden. 4

As for Complainant’s preselection claim, we discern no persuasive evidence that the existing
familial connection was a factor in the selection process. Moreover, even if the family connection
had an impact in the selection, nepotism by itself does not constitute a violation of either Title VII
or the ADEA. We observe that while evidence of preselection may act to discredit the Agency’s
explanation for its selection, preselection does not violate Title VII when it is based on the
qualifications of the selectee and not some basis prohibited by Title VII. Goostree v. State of
Tennessee, 796 F.2d 856, 861 (6th Cir. 1986). We discern insufficient evidence to support
Complainant’s claim that his non-selection was attributable to discriminatory motivation.

With respect to Complainant’s reprisal claim, Complainant refers to his refusal to comply with
what he considered to be instructions dictated by discriminatory attitudes and his disagreement
with the selecting official concerning work assignments and the implementation of leave policy.
Although it is apparent that Complainant and management officials had several disagreements, we
find that the evidence is not sufficient to refute the Agency’s explanation that the selectee’s
qualifications made him the best candidate for the Supervisory Purchasing Agent position.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, 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 (M0617)
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. A party shall have

4 Nonetheless, the Agency erred in not accepting the disparate impact claim in its Letter of
Acceptance.
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twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 (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.

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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

May 9, 2018
Date