Colby P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 24, 20160120142609 (E.E.O.C. Aug. 24, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby P.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142609 Hearing No. 430-2013-00269X Agency No. 2004-0659-2012103996 DECISION On July 11, 2014, Complainant filed an appeal from the Agency’s June 13, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer at the Agency’s Medical Center in Salisbury, North Carolina. On April 3, 2012, the Agency issued Vacancy Announcement VHA-659-12-LC-636953 for a Maintenance Worker position at the Salisbury Medical Center. The Vacancy Announcement stated the selectee would perform daily rounds of all areas assigned. The selectee will take action to correct problems found during daily rounds. The selectee must be able to recognize potential safety problems while performing rounds and be prepared to correct the problem or refer it to a supervisor or safety manager. The selectee must have skills and practical knowledge of the following trades: carpentry, plumbing, electrical, painting, and air conditioning. The selectee must be able to 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. 0120142609 2 troubleshoot, give diagnoses and make repairs related to these trades. The selectee was also required to exhibit good customer service techniques. The Agency previously advertised the Maintenance Worker position in another vacancy announcement. However, the position had only been advertised within the Engineering staff. As a result, only one applicant applied, Applicant 1. The position was re-advertised through an open announcement. Complainant and 47 other applicants applied for the position under the new announcement. An interview panel interviewed five applicants including Complainant in May 2012. The interview panel members were: Panel Member 1, Zone Maintenance Supervisor; Panel Member 2, Fleet Management; and Panel Member 3, Supervisory Engineer. The panel members asked applicants questions concerning the areas of electrical, plumbing, carpentry, painting, and customer service. The panel members scored the applicants’ responses to each question on a scale of 1 to 3 with 3 being the highest and 1 being the lowest. Panel Member 2 gave some responses that he found impressive a score of 4. Each applicant’s final score was based on the average of the scores received from each panel member. Applicant 1 received an average score of 41.0, which was the highest score. The second and third rated applicants received average scores of 37.3 and 34.7. Complainant was ranked fourth with an average score of 20.7. The remaining applicant received an average score of 20.3. The Assistant Chief, Engineering Service forwarded the panel’s recommendations to the Selecting Official, Chief, Facilities Management. The Selecting Official chose Applicant 1, the highest ranking applicant. On October 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when: On July 17, 2012, he learned he was not selected for the position of Maintenance Worker, WG-4749-8, Vacancy Announcement Number VHA-659-12-LC-636952. On November 30, 2012, the Agency issued Vacancy Announcement Number VHA-659-12- LC-788934 for Maintenance Worker positions. The duties and responsibilities for this position were the same as those identified in Vacancy Announcement Number VHA-659-12-LC- 636952. Six applicants including Complainant appeared on the selection certificate for the positions. The applicants were interviewed by a panel in January 2013. The interview panel members were Panel Member 4, Maintenance Supervisor over Equipment Shop (Acting Supervisor over Zone Maintenance Shop); Panel Member 5, Air Conditioning Mechanic; and Panel Member 6, Supervisory Recreation Therapist. The interview panel asked each applicant a series of interview questions related to the electrical, plumbing, carpentry, painting, and HVAC trades. The applicant’s response to each 0120142609 3 question was rated on a scale from 1 to 3 with 3 being the highest and 1 being the lowest. The final scores were based on the sum of the panel members’ scores for the applicant. On January 31, 2012, Panel Member 4 prepared a Memorandum recommending Applicant 2 and Applicant 3 for the positions. Applicant 2’s final score was 162 and Applicant 3’s final score was 143. Complainant’s final score was 104. Based on the panel’s recommendation, the Selecting Official selected Applicant 2 and Applicant 3 for the positions. Subsequently, Complainant requested to amend his EEO complaint to include an allegation that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when: On April 10, 2013, he learned he was not selected for the position of Maintenance Worker, WG-4749-8, Vacancy Announcement Number VHA-659-12-LC-788934. On April 25, 2013, the Agency accepted Complainant’s amendment. At the conclusion of the investigation of Complainant’s amended complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on May 29, 2014. With regard to Vacancy Announcement Number VHA-659-12-LC-636952, the AJ found that assuming Complainant established a prima facie case, the Agency articulated legitimate and nondiscriminatory/nonretaliatory reasons for its action. Specifically, the AJ noted that the Selecting Official stated he selected Applicant 1 because he received the highest rating from the interview panel. The AJ noted the panel members stated they evaluated the applicants based on how detailed the applicants were in their responses to the interview questions. The AJ noted that Panel Member 2 stated he gave Applicant 1 higher scores because of his prior experience and detailed answers to the interview questions. The AJ noted Panel Member 2 stated Complainant was not as detailed in his responses and had less experience. The AJ noted that Panel Member 3 stated he gave Applicant 1 higher scores based on the applicant’s ability to explain the process of completing work from conception to completion during his interview. The AJ noted Panel Member 3 also stated Applicant 1 was able to use specific experiences from his past work experience instead of using hypothetical situations. In contrast, the AJ noted Panel Member 3 stated that Complainant lacked the ability to respond to the interview questions based on previous experience and did not show he had the knowledge needed for the job. The AJ noted that Panel member 1 explained that he gave Applicant 1 higher scores because: (1) he answered each question on point; (2) he gave good answers about customer service problems 0120142609 4 he encountered; (3) his overall demeanor was pleasant; and (4) he was able to expound with more detail on each subject. The AJ noted that Panel Member 1 stated he did not give Complainant higher scores because: (1) he did not have mastery of knowledge of each trade as applied toward a Zone Maintenance worker; (2) he had to be helped to understand how to answer questions on customer service as applied in the working environment; and (3) his overall demeanor and answers were not very engaging. The AJ noted that in an attempt to prove pretext, Complainant stated he was more qualified for the position because he is a “good learner†and he is “reliable.†The AJ noted Complainant stated he knew he could do the job because the job was not hard. The AJ also noted Complainant alleged he should have been selected because he had been working for the Agency longer. The AJ found that although Selectee 1 had only been at the Agency for about a year, his resume showed he had relevant experience from his prior employment. The AJ determined Complainant failed to proffer sufficient probative evidence showing the deciding officials were motivated by discriminatory animus based on race or reprisal. The AJ noted the panel members stated they were not aware of Complainant’s prior discrimination complaint. The AJ pointed out that Complainant stated he did not think that the panel members were aware of his prior EEO activity. The AJ found it undisputed that the Selecting Official was aware of Complainant’s prior discrimination complaint. However, the AJ stated the record showed the Selecting Official made his decision based on the panel’s recommendation. The AJ found Complainant did not proffer any evidence that the Selecting Official manipulated or influenced the interview panel’s recommendation. With regard to Vacancy Announcement Number VHA-659-12-LC-788934, the AJ found assuming Complainant established a prima facie case, the Agency has articulated legitimate and nondiscriminatory/nonretaliatory reasons for its actions. Specifically, the AJ noted that the Selecting Official stated he selected Applicant 2 and Applicant 3 because they were recommended by the interview panel. The AJ noted that Panel Member 4 stated that Applicant 3 demonstrated higher knowledge of his skills in his responses to the questions asked about plumbing, electrical, and carpentry. The AJ noted that Panel Member 4 stated Applicant 2 had extensive knowledge on all subject matters. The AJ noted that Panel Member 4 stated Complainant only demonstrated a basic knowledge of the subject matter. The AJ recognized that Panel Member 5 explained that Applicant 3’s responses to the interview questions across the board with the exception of painting were better than Complainant’s responses. The AJ also noted that Panel Member 5 reported that Applicant 3 demonstrated a higher level of knowledge. Additionally, Panel Member 5 stated that Applicant 2 demonstrated a high level of knowledge in all areas and scored better than everyone. The AJ noted that Panel Member 5 stated that Complainant responded “I don’t know†or gave vague answers during his interview. Further, the AJ noted that Panel Member 6 stated Complainant did not verbalize in his interview many of the skills necessary to prove he could do the job. 0120142609 5 The AJ noted that in an attempt to prove pretext, Complainant stated he was more qualified for the position because he is a good learner and he is reliable. The AJ noted Complainant stated he could do the job because it was not hard. The AJ also noted that Complainant alleged he should have been selected because he had been working for the Agency longer. The AJ averred the record shows that both Applicant 2 and Applicant 3 had prior relevant experience. The AJ determined Complainant failed to proffer sufficient evidence showing the deciding officials were motivated by discriminatory animus based on race or reprisal. The AJ recognized the panel members stated they were not aware of Complainant’s prior discrimination complaint. The AJ also noted that Complainant stated he did not think that the panel members were aware of Complainant’s prior EEO activity. The AJ did recognize that it was undisputed that the Selecting Official was aware of Complainant’s prior discrimination complaint. However, the AJ noted the Selecting Official made his decision based on the panel’s recommendation. The AJ determined that Complainant had not proffered any evidence that the Selecting Official manipulated or influenced the interview panel’s recommendation. The Agency subsequently issued a final order on June 13, 2014. The Agency’s final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant claims there is a genuine question as to whether or not the Selecting Official could have viewed the selectees as superior candidates given the statistical unlikelihood that the scores would break so clearly on the basis alleged for discrimination. Complainant claims he should have been selected because he had experience and seniority. Complainant claims the Agency did not proffer an explanation for why White males would score in the top position each time. Complainant also alleges there is no objective assessment of qualifications by any of the officials other than a claim that the selectees performed better in the interviews. In response to Complainant’s appeal, the Agency notes Complainant repeated the arguments he presented to the AJ in response to the Agency’s motion for summary judgment. The Agency states the AJ considered and addressed Complainant’s arguments. The Agency noted with respect to both vacancies, the selectees received higher scores than Complainant based on their detailed and comprehensive responses to the specific interview questions. The Agency claims Complainant failed to show that the reason for each non-selection was a pretext for discrimination. 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 0120142609 6 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). Upon review of the record we find that the AJ properly found that the present complaint was suitable for summary judgment. We note that the record is adequately developed and that there are no disputes of material fact. We note that Complainant does not challenge the definition of the issues in his complaint on appeal. 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). She must generally establish a prima facie case by demonstrating that she 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 has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (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 v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, the Agency stated Complainant was not selected for the Maintenance Worker positions based on the recommendations that the interview panels made to the Selecting Official. While Complainant makes a vague reference to the panel members’ scores being statistically unlikely, we note he fails to present any actual statistical data. In addition, with regard to his claim that the Agency did not provide an explanation as to why White males scored in the top position in each of the vacancies at issue, we note sex was not a basis raised in his Complainant. Moreover, we note that Complainant is the same sex as each of the selectees. Further, we find despite Complainant’s argument to the contrary, the Agency clearly articulated that the selectees received higher scores than Appellant based on their detailed and comprehensive responses during the interview. Complainant failed to show that his qualifications were plainly superior to those of the selectees. Upon review, we find Complainant has not shown that the Agency’s actions were a pretext for discrimination based on race or retaliation. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 0120142609 7 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. 0120142609 8 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 August 24, 2016 Date Copy with citationCopy as parenthetical citation