0120071588
07-10-2009
Fred L. Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Fred L. Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071588
Hearing No. 120-2005-00305X
Agency No. 2004-0652-2004103341
DECISION
On February 5, 2007, complainant filed an appeal from the agency's January
23, 2007 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
At the time of events giving rise to this complaint, complainant worked
as a Police Officer, GS-6, at the VA Medical Center located in Richmond,
Virginia. On or about January 20, 2004, the agency posted a Vacancy
Announcement No. 04-26 for the position of Supervisory Police Officer,
GS-083-7. The announcement listed the Knowledge, Skills, Abilities
and Other Characteristics (KSAO) rating factors as: (1) knowledge of,
and ability to apply and enforce, standard police procedures; (2) skill
in verbal communication and interpersonal relationships; (3) knowledge,
skill, and ability to plan, direct, and implement a Veteran Affairs police
watch; and (4) skill in investigative procedures and report writing.
The announcement also noted that management would use performance-based
interview (PBI) questions. Complainant applied, and was deemed qualified,
for the position.
The Selecting Official, Chief of Police (CPO) at the VA Medical
Center in Richmond, Virginia, convened an interview panel consisting
of three panel members: a Supervisor, Special Examining Unit, with
no police background; a Readiness Operation Specialist, with no police
background; and a Detective/Supervisor from Hampton, Virginia. The panel
members were instructed by CPO to score each applicant based on their
assessments of the writing sample, the performance-based interview and
the phonetic test.1 Seven qualified applicants, including complainant,
were interviewed and scored by the panel members. The candidate with
the highest score was recommended for the position. CPO followed the
recommendation of the interview panel and selected Officer DS (Caucasian,
male). On June 21, 2004, complainant received a notification dated June
17, 2004, informing him that Officer DS, not he, had been selected for
the position.
On August 5, 2004, complainant filed an EEO complaint alleging that he was
discriminated against and subjected to harassment on the bases of race
(Black), sex (male), and in reprisal for prior protected EEO activity
when: (1) on June 28, 2004, CPO made derogatory statements to another
police officer concerning complainant's conduct and performance issues;
and (2) he was not selected for the position of Supervisory Police
Officer, under Vacancy Announcement No. 04-26.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Thereafter, the case was assigned to an AJ at the
EEOC Baltimore District Office. The AJ held a hearing at two locations
by video conference2 on August 18, 2005. On December 27, 2006, the AJ
issued a bench decision finding no discrimination or harassment.3 The
agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination as
alleged.
In his decision, the AJ found that complainant failed to establish
a prima facie case of reprisal and sex discrimination. Although the
selecting official (CPO) knew about complainant's prior EEO activity,
the AJ concluded that there was no evidence that the panelists knew
of complainant's prior EEO activity. The AJ found that complainant
established a prima facie case of race discrimination, but further
found that the agency articulated legitimate, non-discriminatory
reasons for its actions. Specifically, the AJ found that Officer DS
was selected because the panel rated him the highest. The AJ found
that complainant failed to show that he had "superior qualifications"
or that the agency's articulated reasons were pretextual. Further, the
AJ noted that the panel "did not review the applications as well as they
could have because of the shortage of time, and they did not review the
merit promotion files; thus, they did not have a full picture of the
three complainants' experience, nor did they have the profile of the
other four applicants as well," but concluded that their recommendation
was not based on discriminatory animus. Specifically, the AJ found
that the panel members based their decision on the performance-based
interviewing, which included the interview questions, the writing sample,
and the phonetic test. Further, the AJ noted that in the writing sample
and in the phonetic test, everyone scored nearly 100 percent, so the real
difference was in the performance-based interview, in which the selectee
"separated himself from the rest of the field."
Regarding harassment, the AJ identified details of complainant's
claim as follows: (1) CPO referring to complainant as a "snake in
the grass" to another officer; (2) CPO encouraged other officers to
scrutinize complainant and "write him up" (i.e., issue discipline); (3)
CPO pestered a female employee (in late 2001) to initiate a complaint
against complainant; (4) CPO made racist comments to an employee (in
2002); (5) complainant referred to CPO's "hyperscrutiny" of him; (6) a
counseling of complainant in 2002; (7) an attempt to counsel complainant
in 2004; and (8) the non-selection. The AJ concluded that, while it
was clear that CPO and complainant did not get along well, complainant
failed to establish a harassment claim based on his race or reprisal.
Moreover, the AJ found that complainant did not prove he was subjected
to harassment sufficiently severe or pervasive so as to render his work
environment hostile.
On appeal, complainant contends that the AJ erred in finding no
discrimination. Specifically, complainant contends that the AJ erred
in failing to credit complainant's evidence adduced at hearing that CPO
engaged in discriminatory and retaliatory actions towards complainant.
Complainant stated that CPO's own testimony reveals that he called
complainant a "snake in the grass." Complainant points to the testimony
of three witnesses as corroborating the CPO's allegedly discriminatory
conduct. Complainant further contends that he presented sufficient
evidence at the hearing to establish that he was more qualified than the
selectee, and that even CPO admitted that complainant was more qualified
than the selectee. In reply, the agency contends, inter alia, that the
AJ's decision should be affirmed because the AJ's factual findings and
legal conclusions are fully supported by the record.
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, � 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and non discriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-717 (1983); Holley v. Department of Veterans Affairs, EEOC request
No. 05950842 (November 13, 1997). 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,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of race, sex and retaliation, the Commission finds that there is
substantial evidence in the record to support the AJ's finding that
the agency articulated a legitimate, nondiscriminatory reason for
its action. CPO testified that applicants were evaluated based on
their performance-based interview, writing sample and phonetic test,
and the panel member recommended the candidate with the highest score.
CPO followed the panel recommendations. Thus, we find management's
focus on the applicants' interviews, writing samples, and phonetic test
results was reasonable in this case and not pretextual. Complainant has
not provided sufficient evidence to prove that his qualifications were
patently superior to those of the selectee, nor otherwise shown that the
agency's articulated reasons were pretext for unlawful discrimination
or reprisal. See Williams v. Department of Education, EEOC Request
No. 05970561 (August 6, 1998). Thus, we find that substantial evidence
supports the AJ's finding of no discrimination or reprisal. We also find
that the allegations, taken as a whole, are not severe or pervasive enough
to constitute a hostile work environment. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 23 U.S. 75 (1998). Therefore, complainant failed
to establish that discrimination or harassment occurred as alleged.
The AJ's findings are supported by substantial evidence of record,
and are bolstered by the credibility determinations. Accordingly,
we find no basis to disturb the AJ's decision.
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 order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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
July 10, 2009
Date
1 The "phonetic test" refers to an applicant's knowledge of the phonetic
codes used by agency police officers when talking over the radio.
It consists of 26 codes in alphabetic order, commencing with Alpha,
Baker, Charlie.
2 The Commission notes that the AJ took several witnesses' testimony via
videoconference. In Allen v. United States Postal Service, EEOC Appeal
No. 01A51259 (August 21, 2006), the Commission identified a number of
factors that an Administrative Judge should consider before electing to
proceed via videoconferencing, including: the availability and proximity
to the participants of the videoconferencing facilities; the adequacy of
the available videoconferencing facilities, to include any technological
issues, the cost to the respondent agency (if any) balanced against
the savings in travel time for all parties, and the AJ; the number of
expected participants; and the objection of the parties, if any. Id.
In the instant case, as in Allen, there is no indication of objection to
the use of video-conferencing by either party. The Commission concludes
that the AJ did not abuse his discretion by electing to take testimony
from several witnesses via videoconference.
3 The AJ consolidated at the hearing level three complaints filed
by three different complainants, all of which involved non-selection
for the Supervisory Police Officer position at issue herein. The AJ
issued a single decision that addressed all three complaints. All three
complainants claimed race discrimination. In addition, one complainant
listed disability as a basis and two complainants listed reprisal and
sex as bases of discrimination. The AJ found no discrimination on any
basis in all three complaints.
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0120071588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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