0120130986
03-12-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130986
Agency Nos. 2001-0573-2012101083
2001-0573-2011102068
DECISION
On December 31, 2012, Complainant filed an appeal from the Agency's December 6, 2012, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist, GS-9 at the Agency's Medical Center in Lake City, Florida.
On June 10, 2011 and January 28, 2012, Complainant filed two EEO complaints alleging that the Agency discriminated against him on the basis of race (Black) when:
1. On November 17, 2011, he was not promoted to the position of Medical Technologist, GS 10.
2. On February 25, 2011, management advised him that he did not qualify for promotion to the GS-10 level.
We note that claim 2 was initially dismissed by the Agency. However, the dismissal decision was reversed by the Commission and the matter remanded. See Ellis v. Dep't of Veterans Aff., EEOC Appeal No. 0120121180 (Apr. 27, 2012), req. for recons. denied, EEOC Request No. 0520120547 (Jan. 11, 2013). The complaints were consolidated for an investigation on May 11, 2012.
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). In accordance with Complainant's request, 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. Specifically, the Agency found that it provided legitimate, nondiscriminatory reason for not promoting Complainant to the GS-10 level. The Agency noted that Complainant did not complete the National Accrediting Agency for Clinical Laboratory Sciences (NAACLS) certification which was required for the GS-10 position. The final decision determined that Complainant did not establish that the Agency's reason was pretext for discrimination. Therefore, the decision concluded that Complainant failed to show that he was subjected to race-based discrimination.
Complainant appealed. On appeal, he asserted that the Agency's reason for denying him the promotion was wrong. Complainant claimed that the NAACLS certifies schools, not individuals. Instead, he argued that he has a certification as an American Medical Technologist (ATM). Accordingly, Complainant stated that the Agency has improperly denied him the promotion in violation of Title VII. The Agency requested that the Commission affirm its decision finding no 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. (November 9, 1999) (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 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The record indicated that Complainant was recommended by his supervisor (Supervisor) for the promotion to the GS-10 position. The Supervisor puts together a promotion package including documents such as credentials from Complainant and provides it to Human Resources. The Chief of Human Resources (Chief) determined that Complainant was not eligible for the promotion. The Chief averred that "the standard requires education that included a clinical laboratory training program, approved by the National Accrediting Agency for Clinical Laboratory Sciences (NAACLS), with at least 3 months documented laboratory training in each specialty in which the employee performs high complexity testing." However, she noted that Complainant does not possess a NAACLS-approved clinical laboratory training program, and is not eligible to be promoted. The determination by Human Resources was reviewed by the Medical Technologist Professionals Standards Board (Board) which consists of four individuals. The Chairperson of the Board (Chairperson) averred that "[r]ole of each member is to review documents provided by Human Resources for Medical Technologist who are being recommended for promotion and compare the qualifications to the qualification standard to determine if the person meets requirements for promotion." She stated that the other board members all reviewed the material and replied via email "indicating that without any evidence of clinical practicum, [Complainant] would not meet the Qualification standard as detailed in VA Handbook 5005, Appendix G24, Medical Technologist Qualification Standard." She indicated that Complainant provided no evidence at all of a clinical practicum. Based on the evidence within the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for its decision.
We turn to Complainant to establish that the Agency's reason was pretext for discrimination. Complainant asserted that he provided evidence that he graduated from Tuskegee University with a Bachelor of Science degree in Biology and that he is a member in good standing as an AMT. As such, he argued that he possessed the proper credentials for the promotion. The Commission is not persuaded by Complainant's claim. The record included a copy of a letter dated October 26, 2010, from the Agency's Network Director to Complainant explaining that his degree was issued before Tuskegee program was NAACLS certified. The Network Director stated that Complainant was certified by the AMT organization and that NAACLS does not regard AMT certification as qualifying for proper credentials. Therefore, the Agency explained that Complainant's degree and AMT certification did not render him qualified for the GS-10 promotion. Accordingly, we conclude that Complainant has not shown that the Agency's reasons were pretext for discrimination.
CONCLUSION
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 no race-based 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).
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
March 12, 2015
__________________
Date
2
0120130986
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130986