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

Equal Employment Opportunity Commission

Jul 10, 2014

0120130060 (E.E.O.C. Jul. 10, 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. 0120130060

Hearing No. 531-2011-00220X

Agency No. 200405122010103834

DECISION
Complainant filed an appeal from the Agency’s August 28, 2012 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 Staff Chaplain at
the Agency’s Veterans Affairs Maryland Health Care System (VAMHCS) facility in
Baltimore, Maryland. On August 2, 2010, 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 under Title VII of the Civil Rights Act of 1964 when:

1. On July 1, 2010, Complainant received a letter stating he had not been selected
for the position of Supervisory Chaplain, GS-0060-13, Vacancy Announcement
Number: MP-1D-054.

2. On June 9, 2011, the Agency did not select Complainant for the position of
Supervisory Chaplain, GS-13, Vacancy Announcement CY-10512-002.

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
Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on
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March 29, 2012, April 11, 2012, and April 20, 2012. The AJ issued a decision on August 3,
2012.

In his Decision, the AJ observed that Complainant failed to establish a prima facie case of
discrimination regarding claim (1) on the basis of race because the Agency did not select any
candidate from the identified recruitment action and therefore Complainant could not identify
any other candidates, not in his racial group, who were treated differently than he was treated.

The AJ found, however, that Complainant established a prima facie case of reprisal
discrimination because Complainant applied for the position, was found qualified for the
decision and Complainant’s name appeared on the Agency’s certificate of eligible internal
candidates along with two other candidate names. Complainant was not selected. The AJ
considered the evidence that the top ranked candidate withdrew his application from
consideration and, Complainant alleges that because he was the next highest scoring candidate,
the Agency should have selected him. Complainant contends, the AJ found, that the Agency
returned the certificate making no selection rather than select him, based on reprisal.

The AJ found that S1, the selecting official for both recruitment actions identified in
Complainant’s complaint, was aware of Complainant’s prior EEO activity. S1, the AJ found,
stated at the hearing that she canceled the recruitment action (claim (1)), for three reasons. S1
stated that she discovered the position description for the Supervisory Chaplain position needed
to be reviewed and updated. Also, the AJ noted, S1 stated that the certificate for external
candidates forwarded by the Agency’s delegated examining unit (DEU), had expired and S1
desired to select from a wider pool of applicants. Additionally, the AJ noted that S1 explained
she had conferred with the Agency’s Deputy Director of the National Chaplain Center (D1),
who told her that neither of the two remaining candidates was ready to become Chief Chaplain.
The AJ found that these three reasons were legitimate, nondiscriminatory reasons not
motivated by Complainant’s race or his prior EEO activity.

The AJ considered Complainant’s contention that S1’s statements regarding her conversation
with D1 are contradicted by D1’s statement that the conversation never occurred. In his
statement, D1 said he would never provide a negative reference for a candidate. The AJ
reasoned that if S1’s statement was believed, S1’s decision to cancel the announcement was
based upon her belief that Complainant was not ready for the Chief position, rather than upon
his race or reprisal. If, on the other hand, D1’s statement is true, S1’s third reason is untrue,
but her first two reasons for canceling the announcement are still valid and were not shown by
Complainant to be false.

Further, the AJ considered Complainant’s claim that S1 did not decide to cancel the
recruitment action until after one candidate withdrew and Complainant remained as the top
candidate. The AJ found that based on the evidence, S1’s actions were more likely motivated
by the combination of factors, including the fact that S1 was in a new position herself and
facing overwhelming new duties that included managing hundreds of employees, all of which
caused S1 to delay updating the position description, delayed S1’s contact with human resource
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officials, and ultimately caused S1 to delay canceling the internal vacancy announcement until
the time that she did. The AJ found that Complainant did not prove that S1’s reasons were a
pretext to mask discrimination.

Regarding claim (2), the AJ found that Complainant failed to establish a prima facie case of
race discrimination because the candidate selected for the identified position is the same race as
Complainant.

The AJ found that Complainant did establish a prima facie case of reprisal discrimination
because Complainant applied again and received an interview for the Supervisory Chaplain
position. Again Complainant was found qualified for the position, but was later informed that
he was not selected. The AJ found that the selection action activities identified in claim (2)
occurred within a year of Complainant’s prior protected EEO activity and thus Complainant
established a prima facie case of reprisal discrimination. Nevertheless, the AJ found that the
panel of Agency officials charged with interviewing candidates for this vacancy announcement
did not assign a score to Complainant high enough to be forwarded to S1 with the list of top
scoring candidates at the conclusion of the interview process. The AJ found no evidence that
S1 had any influence over the panel’s interview and scoring process other than to assemble the
panel and to task the lead panel member with creating the interview questions. The AJ found
the evidence showed that panel members graded Complainant’s interview performance based
upon his answers to performance-based questions. The AJ noted that the panel members
commented that some of Complainant’s answers did not address the question directly and that
Complainant exhibited a hostile attitude during the interview.

The AJ found that the interview process, the grade or score assigned to Complainant by the
panel, and the cut-off score (or breaking score) that the panel used to determine the list of top
scoring candidates were not shown by Complainant to be discriminatory. The AJ noted that
nothing in the evidence proved that S1 had any influence over the score given to Complainant.

The AJ concluded that Complainant failed to show that more likely than not he was subjected
to race or reprisal discrimination. 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.

On appeal, Complainant claims that the AJ’s failure to resolve the contradictory evidence
regarding S1’s conversation with D1, from which S1 acquired her third reason for canceling
the vacancy announcement identified in claim (1), is reversible error. Whether S1 and D1
discussed the selection and whether D1 informed S1 that neither Complainant nor another
candidate were “ready” for the Chief Chaplain position requires that S1’s credibility be
assessed, which the AJ failed to do. Complainant notes that initially, S1 cited only two reasons
for canceling the announcement: the need to update the position description and S1’s desire to
select from a wider pool of applicants after the external certificate had expired. Later,
Complainant states, S1’s reasons evolved to include the reasons given to her by D1, which D1
denies providing. The evolution of S1’s answers, Complainant contends, shows that the
0120130060

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Agency’s legitimate, nondiscriminatory reasons are the result of pretext. With S1’s credibility
in question, Complainant argues, the second selection action (claim (2)) is tainted.
Complainant requests that the Commission reverse the Agency’s Final Order and find that
Complainant was subjected to discrimination as alleged.

Additionally, Complainant notes that after the close of the hearing process, Complainant
learned that S1, the selecting official for both selection actions, was forced out of her
management position as a result of an internal Agency investigation into whether S1 provided
false testimony in a legal proceeding. Complainant states that he requested documents from
the Agency regarding S1’s departure but the Agency failed to respond to his request regarding
this development.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
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). Complainant must initially establish a prima facie case by demonstrating
that he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks

, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
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5
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force

, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
As a preliminary matter, we find that in the absence of an order from the AJ, the Agency is
under no obligation to respond to Complainant’s request that the Agency produce documents
after the close of the hearing process. We find that Complainant did not provide any new
evidence regarding any investigation of S1 under the circumstances he describes on appeal, and
so, the Commission has no new evidence to consider.

We find the AJ’s Decision is supported by substantial evidence. We find that the AJ’s analysis
of S1’s reasons for canceling the vacancy announcement (and overall recruitment action)
identified in claim (1) properly considered the evidence of S1’s statements in which S1
consistently stated that she wished to select from a wider pool of applicants. We find no
dispute in the evidence that S1 became the selecting official only after the selection action was
initiated. We find that S1 explained that during the hiring effort, she discovered that the
position description had not been recently updated. S1 expressed her belief that updating the
position description and modifying the vacancy announcement consistent with that update
would attract a larger pool of applicants. We note, as did the AJ, that the DEU certificate of
eligible external candidates expired prior to any selection being made and that this further
narrowed the pool of applicants S1 was able to consider. We find substantial evidence
supports the AJ’s determination that the Agency articulated legitimate, nondiscriminatory
reasons for its actions that Complainant did not show were untrue.

We consider the inconsistent statements of D1 and S1 regarding whether S1 was informed by
D1 that Complainant was not “ready” to assume the Chief Chaplain position. We find that if
S1 is mistaken regarding her conversation with D1, that error does not tend to show that S1
considered Complainant’s race or prior EEO activity in her decision. Nor does that mistake
serve to undermine S1’s stated desire to select from a wider pool of applicants. If, on the
other hand, D1 is mistaken, and he did indeed give S1 the impression regarding Complainant’s
readiness that S1 claims, we find this third reason was simply one more reason for S1 to cancel
the hiring action, independent of her desire to increase the number of applicants from which
the Agency could select the next Chief Chaplain.

We note that Complainant does not challenge the AJ’s finding regarding claim (2) except
insofar as the selection would be tainted upon a finding that S1 is not credible regarding any of
her explanations for her decisions during the selection processes. We find, as did the AJ, that
Complainant’s name was not among the names forwarded to S1 for selection after the review
panel graded Complainant’s interview performance lower than necessary for inclusion in the
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list of top candidates. We find substantial evidence supports the AJ’s finding that Complainant
did not show that the review panel was influenced by S1 or that reprisal for Complainant’s
prior EEO activity played any role in the panel’s interview and scoring process. As the AJ
noted, the selected applicant and Complainant are the same race. Accordingly, we concur with
the AJ that Complainant failed to show he was subjected to discrimination as alleged in claim
(2).

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Order, finding no
discrimination.

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).
0120130060

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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
July 10, 2014