0120101028
06-22-2010
David W. Marion, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David W. Marion,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101028
Hearing No. 531-2009-00048X
Agency No. 2004-0512-2008102191
DECISION
On January 7, 2010, Complainant filed an appeal from the Agency's December
16, 2009 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final order.
BACKGROUND
On April 21, 2008, Complainant filed a formal complaint alleging that
he was the subject of unlawful disparate treatment based on his race
(Caucasian), sex (male), age (over 40) and reprisal for EEO activity
when:
On February 12, 2008, Complainant was informed that he had not been
selected for one of four positions (for Supervisory Police Officer,
GS-083-7) that the Agency wished to fill. Complainant participated in
the interview process; however, his interview score was lower than the
four selectees the Agency ultimately hired for the positions.
Following an investigation, the Administrative Judge (AJ) assigned to
the case solicited prehearing statements from the parties. The Agency
offered as part of its statement a Motion for Decision Without Hearing
which went unopposed by Complainant. Determining that there existed
"no dispute as to material facts" the AJ issued a decision without
holding a hearing. The AJ ruled in favor of the Agency, finding that
Complainant's non-selection was not motivated by discrimination based
on age, race, sex, or reprisal for prior protected activity. The Agency
issued its final order implementing the AJ's decision in full.
CONTENTIONS ON APPEAL
Complainant argues that it was error for the AJ to issue a decision
without hearing in this case. Complainant, through his attorney, argues
that some of the panelists involved with the interview process scored
Complainant lower relative to other panelists; specifically, he charges
that those panelists with awareness of Complainant's past "protected"
activity scored Complainant lower than those panelists who were not aware
of such activity. The Agency argues that summary disposition of this
claim was appropriate because there were no genuine issues of material
facts and, moreover, because Complainant failed to prove his claim of
unlawful disparate treatment.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also Equal Employment Opportunity Commission Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, � VI.B. (November 9,
1999) (providing that an AJ's "decision to issue a decision without
a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (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").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing a decision
without holding a hearing is not appropriate.
Based on a review of the file, the Commission finds that the AJ
appropriately issued a decision without a hearing, as Complainant
failed to proffer sufficient evidence to establish that a genuine
issue of material fact exists such that a hearing on the merits is
warranted. Specifically, the Commission finds that the AJ made certain
that: the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
In order 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 Construction 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. Texas Department of Community 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 Center v. Hicks, 509 U.S. 502,
519 (1993).
To address an age claim, under the ADEA, it is "unlawful for an employer
. . . to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant
alleges that he or she has been disparately treated by the employing
agency as a result of unlawful age discrimination, "liability depends
on whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610
(1993)). "That is, [complainant's] age must have actually played a role in
the employer's decision making process and had a determinative influence
on the outcome." Id.
Further, 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. Social Security
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 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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
With respect to Complainant's claim of reprisal, the Commission disagrees
with the AJ that Complainant failed to establish a prima facie case of
discrimination because he has failed to show that the Agency officials
involved in making the hiring decisions were aware of his protected
activity. Though all five members of the panel responsible for assigning
scores to the interviewees explicitly stated that they had no knowledge of
Complainant's prior EEO activity until after the selection process, there
is contradictory information in the record regarding what the selecting
official knew. On the one hand, the record reveals that the selecting
official claims he was not aware of Complainant's prior EEO activity, yet,
on the other hand, the record also shows that the selecting official had a
"vague remembrance" of Complainant's involvement in past EEO activities,
and that he learned of this "about a year ago." Construing the evidence
in the light most favorable to Complainant, the Commission finds that
he has set out a prima facie case of retaliatory discrimination.1
With respect to the allegations of discrimination based on sex, the
Commission notes that - because the four selectees were all male -
and there are no other inferences of sex discrimination in the record,
Complainant cannot prevail on this claim; thus, Complainant has not made
out a prima facie case of sex discrimination. Also, because three of the
four selectees are the same race as Complainant, and there are no other
inferences of race discrimination in the record, he cannot prevail on
his race discrimination theory with respect to these three individuals
for the same reason. However, with respect to the fourth selectee - an
African American - the Commission finds that Complainant has set out a
prima facie case of race discrimination. Further, the Commission agrees
with the AJ's determination that, with respect to the four selectees,
Complainant has set out a prima facie case of age discrimination, due to
the disparity in age between Complainant and the four selectees. Thus,
because Complainant has set out a prima facie case of discrimination
based on reprisal, race, and age, the burden now shifts to the Agency to
provide a legitimate nondiscriminatory reason for the contested actions.
The Commission finds that the Agency has satisfied its burden in the
instant case. The selection process utilized here involved ranking each
candidate by their cumulative scores which were based on the candidates'
responses to interview questions. Each candidate was asked the same
set of questions, and the candidates with the best responses to each
question were ultimately selected; the candidates who did not have the
best responses were not selected. The selecting official stated that
the selections were based on the above scores. The Commission finds
that this explanation is an adequate and legitimate nondiscriminatory
reason for Complainant's non-selection. See Hunter v. Department of the
Treasury, EEOC Appeal No. 0120080797 (April 28, 2010) (agency provided
a legitimate nondiscriminatory reason for a complainant's non-selection
because complainant ranked fifth out of all qualified applicants and the
agency selected only the top four applicants for its best qualified list).
Thus, the burden now shifts back to Complainant to prove that the Agency's
reasoning is actually pretextual.
The Commission finds that Complainant fails to satisfy this burden
as well. Complainant can show no evidence to defeat the Agency's
reasoning beyond conclusory statements that his non-selection was
motivated by unlawful disparate treatment. Assuming that Complainant
is "better qualified" than the selectees, this does not tend to show
discrimination on the part of the Agency because success in the selection
process itself did not turn on a candidate's background and experience,
but rather, was contingent on the quality of the candidate's responses
to the interview questions. The argument that the Agency's reasoning is
not legitimate because Complainant is "better qualified" would perhaps
be more persuasive if the selection process was aimed at selecting the
four candidates with the most experience and training. Here, however,
the Agency focused more on the candidates' ability to do well during
the interview process. The Commission notes that an agency is afforded
deference with respect to the hiring process. Cf. Debow v. Department
of the Air Force, EEOC Appeal No. 01974591 (June 29, 1999) ("Under Title
VII, an employer has discretion to judge the performance of employees,
so long as the judgment is not based on unlawful criteria.").
Finally, Complainant seems to suggest that, because only one member
of the panel could give a candidate a disproportionately low score
relative to all the other panelists, this somehow tends to show the
Agency's reasoning is not legitimate. The idea here is that even if
three of the five panelists gave Complainant a high score, a minority
of the panelists could still jeopardize Complainant's total score.
Complainant suggests that this is indeed what happened, and infers that
a discriminatory motive lay behind this fact. The Commission notes that
any candidate could receive a high score from a majority of the panel
yet have their ultimate score lowered by receiving a lower number of
points from a minority of panelists. Further, Complainant's total score
placed him sixth out of 14 applicants - suggesting that even though a
minority of the panelists gave lower scores to the Complainant relative
to the majority of the panelists, these lower scores were likely still
higher than the average score given to other candidates by these very
same panelists. The Commission finds that this theory is not persuasive
given the fact that Complainant still scored higher than several other
candidates and missed the cut-off by only two-spaces.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the judgment
of the Agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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), 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 (S0408)
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 (Z1008)
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
June 22, 2010
__________________
Date
1 The AJ found that at least one interview panel member was aware of
Complainant's union activity, but this did not mean he was aware of
Complainant's EEO activity. Regardless of what this panel member knew,
the AJ noted he rated Complainant higher than the selectees.
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0120101028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101028