Demarcus P.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 24, 2018

0120180091 (E.E.O.C. Jan. 24, 2018)

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

Demarcus P.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120180091

Hearing No. 430-2015-00155X

Agency No. 2004-0659-2014104443

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from a decision from an Equal Employment Opportunity Commission
Administrative Judge (AJ) dated June 28, 2017, which effectively became the Agency’s final
decision concerning his 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. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In his complaint, Complainant alleged discrimination based race (Black), age (over 40), sex
(male), and in reprisal for prior EEO activity when on July 8, 2014, he was not selected for the
position of Supervisory Police Officer, GS-0083-9, under Vacancy Announcement Number
VHA-659-14-55-1127669.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an AJ. On November 20, 2015, the Agency filed a Motion for Summary Judgment. The record
is devoid of Complainant’s filing of a response to that motion. On June 28, 2017, the AJ issued a
decision without holding a hearing, finding no discrimination. The Agency did not issue a final
order and thus, the AJ’s decision effectively became the Agency’s final decision. 29 C.F.R.
§1614.109(i). Complainant appeals the Agency’s final decision and contends that his
nonselection was based on discrimination.

ANALYSIS AND FINDINGS

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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted the factual summary set forth in the Agency’s Motion for
Summary Judgment. The AJ, assuming arguendo that Complainant had established a prima facie
case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory
reasons for his nonselection. The record indicates that Complainant applied for the Supervisory
Police Officer position at issue on May 23, 2014, and was interviewed by four interview
panelists but was not selected for the position. The position at issue required, in part, applicants
possess one year of specialized experience equivalent to at least the next lower grade GS-08,
ability to supervise others and communicate with a variety of persons in a wide range of
situations, and ability to initiate, plan, and conduct investigation.

The Agency indicated that it convened the four member panelists to review resumes and
interview all four applicants, including Complainant. The panelists indicated they scored each
applicant based on their resume, experience, education, and interview. Complainant (age of 42),
GS-7/3, received scores of 55 for his resume, 17 for his experience, 20 for his education, and 149
for his interview, for a total score of 241. The selectee (White, male, age of 40), GS-7/5,
received scores of 74 for his resume, 22 for his experience, 12 for his education, and 182 for his
interview, for a total score of 290. Two other candidates received total scores of 289 and 259.
The selecting officer selected the candidate who received the highest total score.
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Complainant claimed that he was more qualified than the selectee for the position at issue since
he had a doctorate degree in public policy and administration, a master’s degree in criminal
justice, a Bachelor of Science degree in criminal justice, and 20 years of experience in law
enforcement working with local and state agencies. Complainant acknowledged he had no EEO
activity prior to the instant complaint.

The panelists indicated that Complainant received the highest score for his education. The
panelists however indicated that the selectee scored higher in other areas because he had more
law enforcement supervisory experience, more leadership as he was a training sergeant and a
certified mentor and coach, more experience within the Agency, and more customer service and
conflict resolutions skills. The selectee also attended the Agency’s Law Enforcement Training
Center (LETC) and did very well during the interview answering all the questions clearly and
explained his experience and prior projects. The panelists stated that Complainant did not attend
LETC and he did not do well in the interview. The panelists stated that during the interview,
Complainant did not give in-depth answers and he did not answer at least one question. The
record indicates that the selectee had been employed by the Agency as a Police Officer and then
a Training Sergeant/Instructor since 2007; and Complainant had been employed by the Agency
as a Police Officer since 2011.

We agree with the Agency that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reasons for not selecting Complainant for the position. Furthermore,
Complainant failed to show that his qualifications for the position were plainly superior to the
selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995).

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 24, 2018
Date