Alfonso T.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 17, 2018

0120162735 (E.E.O.C. Jan. 17, 2018)

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

Alfonso T.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162735

Hearing No. 550-2016-00274X

Agency No. 200P-0612-201505579

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (the
Commission or EEOC) from the Agency’s final order dated August 17, 2016, finding no
discrimination regarding his 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.
For the following reasons, we AFFIRM the Agency’s final order finding of no discrimination.

BACKGROUND

On December 2, 2015, Complainant filed his complaint alleging discrimination based on race
(Black), age (over 40), and in reprisal for prior EEO activity when on September 25, 2015, he
was not selected for a Construction Control Representative (GS-9) position under Announcement
Number 612-15-TG-1453835-BU. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). On August 5, 2016, the AJ issued a decision without holding a
hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.

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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ANALYSIS AND FINDINGS

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. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. At the relevant time, Complainant was employed by the
Agency as a GS-7 Supply Technician at its Mather facility in Mather, California.

The Selecting Official (SO) for the position at issue indicated that he convened three panel
members to review and score resumes and interview and score interviews for candidates. The
panelists indicated that: the Human Resources Office provided them documentation for only
three qualified candidates, including Complainant, for the position at issue; they initially
informed the candidates about the position they were interviewing for, the location of the
position, and other general information about the position; the candidates were ranked according
to the qualifications they provided in their resumes and answers to the interview questions;
during the interview, the candidates were asked the same performance based questions relevant
to the position and rated their interview performance from one to five, five being the highest;
three candidates received average score of 17, 16.17, and 24.33; Complainant received the
lowest score of 16.17; and they recommended the selectee who received the highest score of
24.33 and who provided more complete answers to interview questions. Based on the foregoing
recommendation, the SO selected the selectee but the selectee did not accept the position. The
Agency indicated the position was later re-advertised but Complainant did not apply for that
position. Complainant acknowledged that he did not apply for the re-advertised position.

The SO stated that as a Construction Control Representative, the candidate should have
experience in the construction industry, construction processes, construction contracting
processes, project activation processes, construction scheduling, construction site inspection, and
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construction drawing review. The SO indicated that the selectee was a Construction Control
Inspector and had knowledge and experience with all phases of construction including
new/remodel and commercial/residential. Complainant, however, had very little experience in
the construction management/inspection field.

After a review of the evidence in the record, the AJ determined and we agree that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the
position. Furthermore, Complainant failed to show that his qualifications for the position were
plainly superior to the selectee’s qualifications. See Complainant v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated by discrimination as he
alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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 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
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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. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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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

January 17, 2018
Date