Bennett W.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 29, 2016

0120141468 (E.E.O.C. Apr. 29, 2016)

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

Bennett W.,1
Complainant,

v.

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

Appeal No. 0120141468

Hearing No. 490-2013-00049X

Agency No. 2003-0564-2012102228

DECISION

The Commission accepts Complainant’s appeal from the February 21, 2014 final Agency
decision (FAD) 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounting
Technician at the Agency’s VA Medical Center in Fayetteville, Arkansas. Complainant is an
incomplete paraplegic and uses either a wheelchair or crutches for mobility. Complainant
entered duty with the Agency in June 1997. In February 2012, Complainant applied for a
Budget Analyst position advertised under Vacancy Announcement No. KT-12-584428-DLM.
Complainant and two other candidates were deemed qualified and interviewed by a three-
person selection panel, including the selecting official (SO-1). All three candidates were asked
the same performance-based interview questions and were scored and ranked based on their
responses. Complainant was ultimately ranked third and was not selected by SO-1.
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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On April 15, 2012, Complainant applied for the Veterans Equitable Resource Allocation
(VERA) Program Analyst position advertised under Vacancy Announcement No. KT-12-
633392-KRP. Complainant was one of eight applicants interviewed for the position by a three-
person selection panel, including the selecting official (SO-2). All applicants were asked the
same performance-based interview questions and ranked based on their responses.
Complainant was ranked seventh out of the eight applicants and was not selected by SO-2.

On April 27, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of disability and in reprisal for prior protected EEO
activity when:

1. On February 23, 2012, he was not selected for the position of Budget Analyst under
Vacancy Announcement No. KT-12-584428-DLM; and

2. On May 11, 2012, he was not selected for the position of Program Analyst (VERA
Program Specialist), under Vacancy Announcement No. KT-12-633392-KRP.2

At the conclusion of the investigation of the complaint, the Agency provided Complainant with
a copy of the report of investigation (ROI) and notice of his right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued
a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, as to claim (1), SO-1 stated that he selected Selectee 1
because she was the highest scoring applicant. SO-1 explained that he rated Selectee 1’s
interview higher than Complainant’s because she gave answers to each question, she was
prepared for the interview, she was able to articulate her relevant experience to the position,
and she chose a variety of examples to illustrate her experience. In addition, Selectee 1
demonstrated knowledge of basic appropriations law. In contrast, Complainant failed to
answer all of the interview questions, he was not able to articulate his experience relative to the
position as well as the selectee, and he relied on the same examples for each question. SO-1
added that Complainant did not provide an answer for six questions and did not demonstrate
that he had knowledge of basic appropriations law. Two selection panelists corroborated that
Selectee 1 performed better during her interview than Complainant, as Complainant failed to
completely answer interview questions and provide examples detailing his experience. As a
result, SO-1 selected Selectee 1.

2 The Agency dismissed two additional claims for untimely EEO counselor contact.
Complainant did not challenge these dismissals on appeal; therefore, the Commission will not
address them in this decision.

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Regarding claim (2), SO-2 stated that there were a total of eight applicants for the position and
Complainant scored second to last. SO-2 explained that Complainant was not the best qualified
candidate for selection because he did not answer the interview questions completely and he
did not demonstrate the requisite knowledge related to medical coding, data analytics and the
VERA Program as a whole. Two selection panelists confirmed that Complainant did not show
that he had real knowledge of what the position entailed and he did not have experience in the
position. On the contrary, Selectee 2 answered the interview questions accurately and
demonstrated a deep insight into the qualifications of the VERA Program Analyst position.

In attempting to establish that management’s reasons for its actions were pretextual,
Complainant argued that his application package was superior to that of Selectee 1, specifically
noting that he has a Master’s degree in Business Administration with a 4.00 grade point
average, while Selectee 1 has undergraduate course work with a 2.3 grade point average. The
Agency noted that Human Resources personnel initially screened the application packages and
referred Selectee 1 for further consideration after determining that Selectee 1 met the
requirements for the position. Thus, Selectee 1’s education or lack thereof did not disqualify
her from consideration as the position did not require a college degree. Consequently, the
Agency was not persuaded that Complainant was better qualified than Selectee 1.

Furthermore, Complainant argued that Selectee 1 did not have superior knowledge of the
Government Accounting Office (GAO) “red book” and that when he asked her about her
knowledge of the red book, she stated that she had difficulty answering questions about it. The
Agency found that even assuming that Selectee 1 told Complainant she had difficulty with the
GAO red book question, the record reveals that she did answer the question and demonstrated
some familiarity with it as opposed to Complainant who acknowledged that he was not familiar
with it.

Finally, Complainant argued that SO-2 had a history of showing favoritism to Selectee 2, and
that he believes that SO-2 pre-selected Selectee 2. The Agency determined that the evidence
did not provide a rational basis for the Complainant’s belief that Selectee 2 was pre-selected.
Moreover, the Agency noted that pre-selection, in and of itself does not establish pretext. As a
result, the Agency concluded that Complainant failed to show that management’s reasons for
its actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency relied on subjective determinations from his
interview and ignored that his application demonstrated more familiarity with the requirements
described in the vacancy announcement and the position description. Additionally,
Complainant claims that he was only one of two applicants for the position at issue in claim (2)
with a Master’s degree and that he had demonstrably more experience working with the
Agency and its programs. Accordingly, Complainant requests that the Commission reverse the
FAD.

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ANALYSIS AND FINDINGS

Disparate Treatment

In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies
that its decisions were motivated by Complainant's disability and there is no direct evidence of
discrimination, the Commission applies the burden-shifting method of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir.
1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in
order to establish a prima facie case of disability, Complainant must demonstrate that: (1) he is
an “individual with a disability;” (2) he is “qualified” for the position held or desired; (3) he
was subjected to an adverse employment action; and (4) the circumstances surrounding the
adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245
F.3d 916 (7th Cir. 2001).

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).

In the instant case, the Commission shall assume arguendo that Complainant is a qualified
individual with a disability and otherwise established a prima facie case of discrimination and
reprisal. The Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for not selecting Complainant for the positions at issue. Specifically, as to claim (1),
SO-1 affirmed Selectee 1’s application package and her interview demonstrated that she was
the highest-rated candidate. SO-1 explained that Selectee 1 provided complete answers while
Complainant was unable to answer all of the interview questions; Selectee 1 was better
prepared for the interview; Selectee 1 was able to articulate her relative experience to the
position better than Complainant; and Selectee 1 chose a variety of examples to illustrate her
experience while Complainant relied on the same examples for each question. Agency’s
Motion for Summary Judgment, Ex. C. Other panel members agreed that Complainant was
not as prepared for the interview as Selectee 1 and failed to fully answer the interview
questions. ROI, at 131-32, 145. As a result, Complainant was ranked third of the three
candidates and was not selected.

With regard to claim (2), SO-2 asserted that Complainant was not the best qualified candidate
for the position because other applicants demonstrated more knowledge and experience with
medical coding, the VERA program, and data analytics than Complainant. ROI, at 159. SO-2
noted that Complainant failed to fully answer questions during his interview. Id. at 159-60.
By contrast, selection panelists confirmed that Selectee 2 answered the interview questions
accurately, showed that she had a deep insight into the qualifications of the position, and
demonstrated that she had extensive experience with coding and auditing of medical coding.

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Id. at 172, 180. As a result, Complainant was ranked seventh of the eight candidates and was
not selected.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext is by showing that his qualifications are observably superior to those of the selectee.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not
the only way Complainant may establish pretext as to his non-selection claim.

The Commission finds that Complainant failed to show that his qualifications for the position
were plainly superior to those of the selectees. In this case, the selectees had attributes that
justified their selection, and the selection officials involved all affirmed that they believed that
the selectees were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

As Complainant chose to withdraw his request for a hearing, the Commission does not have
the benefit of 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.
The Commission finds that the record lacks evidence that the Agency’s selections or the
selection processes were tainted by discriminatory or retaliatory animus. At all times, the
ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence
that the Agency's reasons were not the real reasons and that discriminatory or retaliatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that he was subjected to discrimination
or reprisal as alleged

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.

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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.

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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

April 29, 2016
Date