Arthur F.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 26, 2018

0120162056 (E.E.O.C. Apr. 26, 2018)

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

Arthur F.,1
Complainant,

v.

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

Appeal No. 0120162056

Agency No. 200J-0553-2015103458

DECISION

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 April 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

Between March and May 2015, Complainant applied for two positions as a Human Resources
Assistant, GS-0203-05 at the Agency’s Medical Center in Detroit, Michigan. On July 5, 2015,
after having been notified that he had not been selected for either position, Complainant filed an
EEO complaint in which he alleged that the Selecting Official and the Review Panelists for the
first vacancy had discriminated against him on the bases of race (Caucasian), sex (male), and age
(59), by not selecting him on March 31, 2015. He also alleged that the Selecting Official and the
Review Panelists for the second vacancy had retaliated against him for initiating the EEO
process in connection with the first nonselection by not selecting him for that position on May
28, 2015.

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
investigative report (IR) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a final Agency decision, and in accordance
with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

The First Vacancy: Complainant claimed that he was discriminated against on the bases of race,
sex, and age when on March 31, 2014, he was notified that he had not been selected for the
position of Human Resources Assistant for Information Systems. Complainant was among the
candidates referred for a performance-based interview by the Human Resources office.
According to the Selecting Official and the panelists, candidates were evaluated on the basis of
their resume (15%), their responses to the interview questions (45%); and a check of their
references (40%). The scores from each element of the process would be weighted and
combined into a single score. Complainant’s combined score was 21.65 while the Selectee’s
combined score was 22.35. The panelists averred that they had recommended the Selectee
because she had government experience in human resources and customer services, and that
Complainant’s resume did not include such experience.

The Second Vacancy: Complainant claimed that he was retaliated against for contacting an EEO
counselor in connection with his earlier nonselection when, on May 28, 2015, he was notified
that he had not been selected for the position of Human Resources Assistant for Recruitment and
Placement. The merit selection process for the second vacancy was similar to the first, the only
significant difference being that the interviews were conducted by telephone. As with his earlier
application, Complainant was certified as among the best qualified candidates and referred to the
review panel. For this vacancy, Complainant was given a combined weighted score of 20.90,
which indicated that he met but did not exceed the threshold skills of providing technical support
for recruitment and placement activities. The four Selectees who were chosen had scores as
follows: the first Selectee – 25.15; the second Selectee – 24.40; the third Selectee – 23.80; and
the fourth Selectee – 21.10. According to one of the panelists, the fourth Selectee declined the
offer of employment.

According to the EEO Counselor’s report, Complainant initiated the informal EEO process on
May 19, 2015, after he received word of the first nonselection but before he received notice of
the second. The parties attempted to resolve the matter through mediation, but were
unsuccessful. In its letter of partial acceptance of Complainant’s complaint, the Agency
dismissed for failure to state a claim, an allegation in which Complainant stated that the EEO
Program Manager failed to respond to his safety concerns and to his request for a reasonable
accommodation during the mediation session. The Agency also noted that Complainant had
challenged a number of actions that had occurred prior to the mediation, including the
dissemination of his name and email address to members of the Human Resource office’s staff a
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few days before the mediation and the failure to provide certain documents that he had requested
prior to the mediation and on the day of the mediation itself.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

We must first address the Agency’s dismissal of that portion of Complainant’s EEO claim that
pertained to the various actions of the EEO Program Manager on the grounds that Complainant
was challenging actions that had occurred during the mediation process. On appeal,
Complainant contends that the Agency erred in dismissing this allegation because these incidents
had all taken place prior to the mediation. Appeal Brief, pp. 7-9. We disagree. It is settled
precedent that settlement negotiations, including any statements or proposals, are to be treated as
confidential and privileged to facilitate a candid interchange to settle disputes informally. Darla
W. v. Dept. of the Air Force, EEOC Appeal No. 0120172962 (Feb. 6, 2018) citing Thomason v.
Dept. of the Army, EEOC Appeal No. 01A54061 (Jun. 22, 2006). See also Arica C. v. Dept. of
Commerce, EEOC Appeal No. 0120142412 (Nov. 30, 2016), request for reconsideration denied,
EEOC Request No. 0520170185 (Apr. 19, 2017). The actions of the EEO Program Manager that
Complainant challenged either were centered around or arose out of the mediation,
notwithstanding Complainant’s attempts to characterize them as taking place before the
mediation. Complainant cites no legal authority in support of his contention. Accordingly, we
affirm the Agency’s dismissal of his complaint allegation pertaining to the actions of the EEO
Program Manager. However, we note to the Agency that although Complainant did not allege
discrimination on the basis of disability, it should be mindful of its responsibility to respond to
requests for reasonable accommodation in the mediation process.

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). As a first step, 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with in this case, however, since the Agency
articulated legitimate, nondiscriminatory reasons for not selecting Complainant for either
vacancy. See U.S. Postal Service Board 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).
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The Selecting Official and the panelists all averred that although Complainant was among those
referred for an interview, the Selectees for both positions were more qualified, and performed
better in the interviews.

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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community 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). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008).

In situations involving hiring or promotion, the applicant should bear in mind that employers
have broad discretion to set policies and carry out personnel decisions, and should not be second-
guessed by the reviewing authority absence evidence of unlawful motivation. Kiara R. v. Dept.
of Agriculture, EEOC Appeal No. 0120161558 (March 30, 2018) citing Burdine supra at 259.
What this means is that agencies have discretion to choose among equally qualified candidates as
long as the selection is not based on unlawful considerations which in this case would include
race, sex, age, or prior EEO activity. Complainant v. Dept. of Homeland Security, EEOC Appeal
No. 0120141478 (Jul. 31, 2015). Agencies may select candidates with fewer years of experience
if they believe that such candidates are best qualified to meet the needs of the organization. See
Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even
preselect a candidate as long as the preselection is not premised upon a prohibited basis. See
Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

Complainant could demonstrate pretext by showing that his qualifications for the positions were
plainly superior to those of the Selectees. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal
No. 0120141721 (Dec. 3, 2015). He could also do so by pointing to other indicators of pretext
including discriminatory statements or past personal treatment attributable to those responsible
for the personnel action that led to the filing of the complaint, comparative or statistical data
revealing differences in treatment across various protected-group lines, unequal application of
Agency policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv.,
EEOC Appeal No. 0120141697 (Nov. 12, 2015).

When asked by the EEO Investigator why he believed that his nonselections for both positions
were motivated by considerations of his race, sex, and age, Complainant averred that there were
very few Caucasians present when he visited the Agency for his in-person interview and the
mediation, that the vast majority of those present were female, and that he did not see any
Human Resource Assistants or other staff much older than forty. IR 207-08, 214. When asked
why he believed the second nonselection was due to reprisal, he averred that the EEO Program
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Manager cancelled his first meeting to set a mediation on the same day that he had received
notice of his second nonselection. IR 214-15. Beyond these assertions, Complainant has not
presented affidavits, declarations, or unsworn statements from witnesses other than himself nor
documents that contradict the explanations provided by the selecting officials and the review
panelists for the two positions for choosing the Selectees or which calls their veracity into
question.

Complainant appears to be arguing on appeal that the panelists’ decision to exclude those
without recent military experience was indicative of age discrimination. He also argues that one
of the panelist’s citing of “government experience” as a reason for choosing the Selectee over
him for the first vacancy is indicative of pretext. He also contends that the investigation was
incomplete. To the extent he believed the investigative report was missing critical information
and that the statements given to the investigator by the selecting officials and the review
panelists lacked credibility, he was given the opportunity to request a hearing before an EEOC
AJ, during which he could have obtained more information in the discovery process. As
Complainant chose not to pursue that option, the Commission does not have the benefit of that
additional evidence or an Administrative Judge’s credibility determinations after a hearing.
Therefore, the Commission can only evaluate the facts based on the weight of the evidence
presented. Based upon the weight of the evidence before us, we agree with the Agency that
Complainant failed to sustain his burden to establish the existence of an unlawful motivation
attributable to any official involved the selection processes for the two vacancies at issue in this
complaint.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against as alleged.

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
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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. 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

April 26, 2018
Date