Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120121268 (E.E.O.C. Feb. 27, 2013)

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

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120121268

Hearing Nos. 530-2008-00328X & 530-2008-00343X

Agency Nos. 2004-0613-2008-100109 & 2004-0613-2008-101753

DECISION

Complainant filed an appeal with this Commission concerning his complaint of unlawful
employment discrimination. For the reasons set forth, we AFFIRM the Agency’s decision,
finding no discrimination.

BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as a Food
Service Worker, WG- 2, under Nutrition and Food Service at the Agency’s VA Medical
Center Martinsburg in Martinsburg, Virginia. Complainant sought EEO counseling and
subsequently filed two formal complaints.

In the first complaint (Agency No. 2004-0613-2008-100109), Complainant alleges that he was
subjected to discrimination on the basis of race (African-American) when Complainant learned
that he was not selected for the position of Maintenance Mechanic, Vacancy Announcement
Number 62-07.

In the second complaint (Agency No. 2004-0613-2008-101753), Complainant alleges that he
was subjected to discrimination on the basis of race (African-American) when Complainant
learned that he was not selected for the position of Painter, WG-4102-09, Vacancy
Announcement Number 185-07.

At the conclusion of the investigation, Complainant received a copy of the investigative
reports. Additionally, the Agency informed Complainant of his right to request a hearing
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before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from
the Agency. Complainant requested a hearing. The AJ consolidated the complaints.

On December 16, 2011, the AJ issued two decisions without a hearing finding that there was
no genuine issue of material fact in dispute, and concluded that Complainant had not been
discriminated against as alleged. Specifically, the AJ found the Agency presented legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.

On December 21, 2011, the Agency, fully implementing the AJ’s decision, issued a decision
finding no discrimination. Complainant appealed from that decision.

On appeal, Complainant disputed the AJ’s statement in her decision that Complainant had
failed to respond to the Agency’s Motion for Summary Judgment or Decision Without A
Hearing (Agency’s Motion). Complainant stated that he timely submitted an opposition to the
Agency’s Motion.

In response to Complainant’s appeal, the Agency argued that the AJ’s decision included a
thorough recitation of the relevant facts, as well as a complete analysis of the controlling law.
The Agency noted that, while Complainant did submit an appeal statement, it failed to offer
any justifiable evidence to support his claim that he was subjected to discrimination. Instead,
Complainant admitted that Complainant’s Opposition to the Agency’s Motion for Summary
Judgment while submitted to the Agency was sent to an incorrect address for the AJ, and
therefore, the AJ noted in her decision that, “Complainant failed to submit a response to this
Motion.”

The Agency stated that Complainant’s statement conceded that Complainant failed to follow
proper procedure and apply for the Maintenance Mechanic position or the Painter positions
announced through the Delegating Examining Unit (DEU) in Topeka, Kansas and therefore,
could not be considered. The Agency asserted that Complainant’s appeal statement failed to
present any evidence showing that Complainant’s race had anything to do with his non-
selection for the positions at issue, that he scored higher than the selectees, or that he possessed
the specific experience and skills that were required for the positions at issue. The Agency
argued that given the undisputed facts of this matter, even if the AJ had considered
Complainant’s Opposition Motion, the AJ’s decision would have still been in favor of the
Agency, finding no discrimination. Therefore, the Agency argued that Complainant failed to
demonstrate any reason for reversing the AJ’s decision granting summary judgment in favor of
the Agency. Consequently, the Agency requested that the final order be affirmed.

ANALYSIS AND FINDINGS

The Commission finds that Complainant has failed to show on appeal why the AJ’s decision to
issue summary judgment was incorrect. We find that even if Complainant’s opposition to the
Agency’s motion for summary judgment had been considered, summary judgment for the
Agency is still appropriate.
0120121268

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The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case. If a case can only
be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider summary judgment only
upon a determination that the record has been adequately developed for summary disposition.

Upon review, we find summary judgment was appropriate as no genuine issues of material fact
exist. Regarding the Maintenance Mechanic position, we find that on March 3, 2007,
Complainant applied for the position of Maintenance Mechanic, advertised under internal VAN
62-07. Approximately 30 individuals applied for the position. Complainant was found to be at
least minimally qualified and placed on the first certificate of eligibles for internal applicants.
Complainant’s name and application, along with the other qualified internal or “in house”
applicants was referred to the selection panel for review. The selection panel was comprised
of the Chief Maintenance Mechanic, the Maintenance Mechanic/Locksmith, and the
Maintenance Mechanic Foreman/Supervisor.

After reviewing the internal applications, the panel returned the applications without reviewing
any applicants, including Complainant or making a selection. The panel determined that none
of the internal applicants met the Agency’s needs or would be able to keep up with the
workload demands of this position. The panel explained that not one of the applicants on the
certificate possessed the qualifications needed for the position. The panel was seeking
individuals with more professional experience. Therefore, the panel requested that Human
Resources re-post the position through the Delegating Examining Unit (“DEU”) in Topeka,
Kansas. While Complainant was entitled to apply for the Maintenance Mechanic position re-
posted through DEU, he failed to do so and therefore, could not be considered by the panel to
fill this position. The panel selected three Caucasian males off the DEU certificate and the
Chief of Facilities Management was the “approving authority.”

Selectees A and B scored 92 points each and selectee C scored 89 points. Selectee A’s
application demonstrated his specialty as plumbing for 14 years. He graduated from the CWT
program in plumbing at the VA Medical Center and he was skilled in carpentry, masonry and
0120121268

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floor installation. Selectee B was a general trade worker with experience in tile, drywall,
plumbing, and industrial electrical work. Selectee B was also a structural specialist in the field
of carpentry and experienced in reading blueprints and metal fabrication. Selectee C ran his
own business, had experience in reading blueprints, installing drywall and ceilings, operating
power tools and had built two homes.

As to the Painter position, we find that Complainant applied for the position of Painter, WG-9,
advertised on September 19, 2007. The facility was looking to hire two painters to fill 2 WG-
9 positions. The interview panel for the Painter position was comprised of the Facility Control
Manager, the Chief Maintenance Mechanic, and the Maintenance Mechanic
Foreman/Supervisor. The panel reviewed 31 applicants, but only eight were found to be
qualified or minimally qualified. Complainant conceded that he was interviewed for the
Painter positions and that the Facility Control Manager posed all the interview questions on
behalf of the panel.

After considering the internal candidates, the panel, just as it did with the Maintenance
Mechanic position, determined that none of the candidates, including Complainant
demonstrated that they had the required knowledge, expertise, or experience for the Painter
positions so the panel again asked Human Resources to re-post the positions through DEU.
After ranking, scoring, and interviewing the qualified candidates who did apply through the
DEU, the panel referred two applicants for the two vacant positions of Painter.

The Maintenance Mechanic Foreman/Supervisor stated that Complainant was not selected for
the Painter positions because his score was not high enough. Specifically, Complainant’s
incorrect response to the question regarding paint types lowered his score. Complainant also
failed to correctly answer the question regarding caulking and paint exteriors. The
Maintenance Mechanic Foreman/Supervisor stated, and Complainant admitted in his appeal
statement, that when asked to list four kinds of different paints on the market, Complainant
stated that he could remember only two, “semi-gloss” and “flat”. Unlike the selectees,
Complainant failed to provide a correct response identifying the types of paint as latex, oil,
stain, acrylic, epoxy, and/or allure.

All of the panel members and the approving authority stated that race was not a factor. The
panel members stated that the selections were made based on the candidates’ skill, knowledge,
expertise, experience, and their ability to communicate this information in their applications
and during the interview process. The Chief of Facilities Management was the “approving
authority” for the selection of the Painter positions so after the panel forwarded him their
selections, he approved of the selections.

The Commission finds that Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons. Additionally, the Commission finds that Complainant failed to
show that his qualifications for the Maintenance Mechanic and Painter positions were plainly
superior to the selectees’ qualifications or that the Agency’s actions were motivated by
0120121268

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discrimination. The Commission finds that Complainant failed to show, by a preponderance of
the evidence, that he was discriminated on the basis of race.

CONCLUSION

The Agency’s decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 27, 2013
Date