Avery R.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120142882 (E.E.O.C. Jan. 29, 2016)

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

Avery R.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142882

Hearing No. 420-2014-00063X

Agency No. 2003-0520-2013103167

DECISION

Complainant filed an appeal from the Agency’s August 15, 2014, final order 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. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

Complainant worked as an Administrative Officer at the Agency’s Primary Care facility in
Biloxi, Mississippi. On June 26, 2013, he filed an EEO complaint in which he alleged that the
Associate Director of the Gulf Coast Veterans Health Care System, in his capacity as a
Selecting Official (SO) discriminated against him on the bases of race (Caucasian) and sex
(male) by not hiring him to be the Administrative Officer (AO) at a clinic in Mobile, Alabama.

Complainant applied for the position through the competitive process. He was found qualified
and his name was placed on the certificate of eligibles which was sent to the SO. He was
given performance appraisal ratings of outstanding for fiscal years 2011 and 2012. He was

1This 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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also given a temporary detail as the AO at the outpatient clinic in Mobile and was awarded
$500 in cash by the SO for exemplary performance in that detail. According to the SO,
however, the Director of the facility had made contact with a national program office that
oversees training for administrative fellows and health system management trainees. The
Director presented the SO with a list of trainees who were eligible for non-competitive
appointments and asked him to determine whether any of them would be appropriate for the
vacant AO position in Mobile. The SO did so, and interviewed and ultimately chose the
Selectee, a White female. Investigative Report (IR) 191, 197-200, 204-06, 218, 261, 264,
268, 273, 291, 309. A Supervisory Staffing and Recruitment Specialist averred that selecting
officials had the option of hiring applicants from competitive or noncompetitive sources. IR
227-228.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing, but the AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and issued a decision on July 25, 2014, entering
summary judgment in favor of the Agency. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selections
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his disparate treatment
claim in connection with not being hired as the Administrative Officer at the clinic in Mobile,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether the SO was motivated by unlawful considerations of race and sex when he chose the
Selectee. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000).

Since his case is circumstantial, Complainant can raise a genuine issue of material fact as to the
existence of an unlawful motivation by presenting documents or sworn testimony showing that
the reason articulated by the SO for picking the Selectee is pretextual, i.e., not the real reason
but rather a cover for race or sex discrimination. St. Mary’s Honor Society v. Hicks, 509
U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Because the Selectee was White, there
was no disparate treatment across racial lines and hence no basis for drawing the inference
necessary to support a prima facie case of race discrimination. This leaves only his sex
discrimination claim.

The Commission has long held that in hiring situations, an employer has discretion to choose
among equally qualified candidates as long as the selection is not based on unlawful criteria, in
this case sex. Complainant v. Department of Homeland Security, EEOC Appeal No.
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0120141478 (July 31, 2015). Therefore, in order to raise an inference of pretext, Complainant
would have to show that his qualifications for the AO position were plainly superior to those of
the Selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721
(December 3, 2015). Here, there is no question that Complainant was highly qualified for that
position, by virtue of his performance in his regular job for the previous two fiscal years, as
well as his service in the temporary AO detail. Despite Complainant’s qualifications, and
presumably those of the other competitive applicants, the SO opted to bypass the certificate and
make his selection from a noncompetitive list of health system management trainees, as he was
clearly permitted to do under the Agency’s recruitment and hiring policies. Complainant
acknowledged that he was not aware of the Selectee’s qualifications beyond her participation in
the training program. IR 206. Consequently, no genuine issue of material fact exists as to
whether Complainant’s qualifications for the AO position in Mobile were plainly superior to
those of the selectee.

Nevertheless, Complainant can still present evidence of pretext in the form of discriminatory
statements or past personal treatment attributable to the SO, comparative or statistical data
revealing differences in treatment across gender 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. United States Postal
Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the
investigator why he believed that his nonselection for the AO position was based on sex,
Complainant responded that he had heard from one of the staff doctors that the SO did not like
him. IR 206, 208. The SO averred that their relationship was “just fine” while Complainant
was serving in the temporary AO detail. IR 217. Complainant’s assertion regarding the SO’s
negative feelings toward him is further undermined by the fact that the SO saw fit to give
Complainant a performance award for his service as the acting AO at the Mobile outpatient
clinic.

In short, Complainant did not provide evidence of any of the indicators of pretext described
above. He has not submitted any sworn statements from other witnesses or documents that
contradict the explanation provided by the SO, or that call the SO’s veracity into question. We
therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the
SO’s motivation in connection with his decision to hire the Selectee for the Administrative
Officer Position in Mobile, Alabama.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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, 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 (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
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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

January 29, 2016
Date