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

Equal Employment Opportunity Commission

Jan 31, 2014

0120120837 (E.E.O.C. Jan. 31, 2014)

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. 0120120837

Agency No. 200I05732007101576

DECISION
On November 29, 2011, Complainant filed an appeal from the Agency’s final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 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 decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the North Florida/South Georgia Veterans Healthcare System located in
Gainesville, Florida. On March 27, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of disability, age (58), and in reprisal for
prior protected EEO activity when: on January 31, 2007, he learned that he was not qualified
for the position of Program Analyst, GS-343-7/9, under Vacancy Announcement No. 06-212-
JK.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
0120120837

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Administrative Judge (AJ).1

When Complainant did not request a hearing within the time
frame provided in 29 C.F.R. § 1614.108(f), 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.

ANALYSIS AND FINDINGS
The Human Resources Management Specialist, (HRS) who reviewed Complainant’s
application, did not find him to be minimally qualified for the position; and consequently, did
not refer his application for selection. Specifically, HRS found that Complainant did not
qualify by virtue of experience, because his resume lacked sufficient detailed information
concerning his duties in prior positions. Moreover, even though Complainant’s resume
indicated that he had a graduate degree, HRS concluded that he did not qualify by virtue of
education because he failed to include a college transcript. The undisputed record shows that
the vacancy announcement specified that college transcripts were necessary for an applicant to
receive credit for college education. HRS attested that she did not know Complainant, has
never met Complainant and had no knowledge of Complainant's age, disability or prior EEO
activity.

On appeal, Complainant argues that HRS was involved in other prior non-selections involving
Complainant which contradicts her testimony that she was unaware of Complainant’s protected
classifications. However, this assertion is not dispositive, since the Agency assumes, for the
purposes of its analysis, that Complainant established a prima facie case of discrimination and
retaliation. Complainant also argues that his educational background was sufficient to render
him qualified for the position. However, the Agency concedes that Complainant may have
been qualified to perform the job, but that his application packet failed to meet the vacancy
announcement’s explicit requirements. Complainant does not dispute the fact that he failed to
include his college transcripts with his application, nor does he allege that other similarly
situated applicants, outside his protected classifications were treated more favorably.
Accordingly, we agree with the Agency’s decision that Complainant failed to establish that
HRS’ explanation for finding him not qualified was a pretext or otherwise motivated by
discriminatory or retaliatory animus.

Lastly, Complainant asserts that he was prejudiced by not getting the opportunity to respond to
the evidence gathered during the supplemental investigation. Specifically, the record shows
that while the EEO investigator attempted to contact Complainant to obtain a rebuttal
statement, his efforts were not successful.2

1 The Commission’s Office of Federal Operations remanded this matter to the Agency for a
supplemental investigation to take place. See EEOC Appeal No. 0120082152 (Nov. 30,
2010).
However, on appeal, Complainant fails to raise
2 The EEO investigator’s note on file states: “All attempts to contact the Complainant failed.
The number on file for the Complainant plays a recording '[y]ou have reached a number that
has been disconnected or is no longer in service.’ The Complainant was sent a letter on
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any issue or proffer any fact that is potentially dispositive. Moreover, we find that the EEO
investigator used every means practical to locate Complainant, and Complainant is ultimately
the one who is responsible for ensuring that the Agency had his updated contact information.
Accordingly, we do not find that the failure to obtain Complainant’s rebuttal statement, given
the facts herein, to be unfairly prejudicial.

CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s final decision
finding that Complainant did not establish discrimination or retaliation as alleged.

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.

January 21, 2011, informing him of the Investigation, but this letter was returned ‘Return to
Sender- Not Deliverable as Addressed- Unable to Forward.’ In addition, the Investigator sent
a letter to the Complainant, dated January 24, 2011, informing him of the investigation and
giving him an opportunity to introduce additional relevant evidence into the record and to
request an updated working telephone number, but this document was also returned and
marked 'Return to Sender- Not Deliverable as Addressed -Unable to Forward.’"
0120120837

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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

(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

Date
January 31, 2014