0120141212
12-08-2016
Allan, F.1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Allan, F.1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141212
Agency No. 200J05782013102170
DECISION
Pursuant to 29 C.F.R. � 1614.403(a), Complainant filed an appeal from the Agency's January 10, 2014 final decision in the above-entitled matter. Complainant alleged that the Agency discriminated against him, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., on the bases of race (African-American/Middle Eastern), national origin (Egyptian), and reprisal for prior protected EEO activity under Title VII when on February 27, 2013, he was not selected for the position of Associate Chief of Pharmacy for Operations, GS-0660-14, under Vacancy Announcement No. HN-1469-813901-BC.
Management articulated legitimate, non-discriminatory reasons for Complainant's non-selection. At the outset, the Commission notes that Complainant scored third out of the four applicants, receiving 366 out of 550 possible points. The highest ranked applicant, and ultimate Selectee, received 467 points, and the second ranked applicant received 427 points. The panelists determined that the Selectee was knowledgeable of pharmacy practices and technology, the standards of the Joint Commission Standards, and current trends in health system pharmacy. He was found to have demonstrated excellent leadership, communication, and administrative skills, and he had private sector, management and clinical background experience. The panelist found that his experience crossed clinical, outpatient, and inpatient pharmacy practice. He also demonstrated "higher level answers" in his responses.
The panel determined that Complainant's responses lacked depth and specific examples. Complainant was also unable to explain trends in pharmacy and seemed to lack knowledge about the Joint Commission Standards. The panelist stated that Complainant either refused to answer some questions or his answers were completely unrelated to the questions. While Complainant had many of the qualifications and some of the experience of the Selectee, the panelist felt he lacked the same depth and range of experience.
Complainant raised a variety of arguments in an attempt to establish pretext to include, for example, the selection panel was comprised of all native English language speakers; some panel members had prior participation in the Selectee's residency training; the use of the phone interview was improper; and the interview questions were inappropriate and irrelevant. In sum, Complainant argued that the interview process indicated that the Selectee was pre-selected for the position.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
To the extent that Complainant argues that pre-selection took place here, we note that the Commission recognizes that preselection and favoritism do not violate Title VII, when they are based on the qualifications of the preselected individual. However, if the selection is predicated on some basis prohibited by Title VII, evidence of preselection and favoritism can operate to discredit the legitimacy of the Agency's explanation as proof of pretext. Goostree v. State of Tennessee, 796 F. 2d 854, 861 (6th Cir. 1986); Nickens v. Nat'l Aeronautics and Space Admn., EEOC Request No. 05950329 (Feb. 23, 1996). We find no evidence of an unlawful motivation here. 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 (M0416)
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 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. The requests 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 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. 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
__12/8/16________________
Date
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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0120141212