0120080703
08-03-2009
Fred Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Fred Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080703
Hearing No. 430-2007-00064X
Agency Nos. 2004-0652-2006101743, 2004-0652-2006102534
DECISION
On November 9, 2007, complainant filed an appeal from the agency's October
16, 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 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
At the time of events giving rise to this complaint, complainant worked as
a Police Officer at the VA Medical Center located in Richmond, Virginia.
Complainant submitted his application for the position of Supervisory
Police Officer, GS-083-7, Vacancy Announcement No. 06-01. Complainant
was deemed qualified for the position. The Chief of Police (CPO),
Richmond Medical Center, was the selecting official for this position,
and convened a three-member interview panel consisting of a Chief of
Police from the Salem, Virginia Medical Center; a Chief of Police from
the Fayetteville, North Carolina Medical Center; and a Detective from
the Hampton, Virginia, Medical Center. The panel members conducted a
performance-based interview, asked each applicant the same questions,
rated and scored the answers, and then made a recommendation to CPO.
The panel members recommended Officer JJ (African-American) for the
position. CPO followed the recommendation and selected Officer JJ.
On April 28, 2006, complainant filed a formal EEO complaint (Agency
No. 2004-0652-2006101743) alleging that he was discriminated against
on the bases of his race (Black), color (dark skin), national origin
(non-Indian), and in reprisal for prior EEO activity when management
used an erroneous supervisory appraisal, and that as a consequence,
he was not selected for the position of Supervisory Police Officer.
On June 30, 2006, complainant filed another formal EEO complaint (Agency
No. 2004-0652-2006102534). Complainant claimed that he was subjected
to ongoing harassment based on his race (Black) and in reprisal for
prior EEO activity. Complainant described the following incidents
from April 10, 2006 through June 16, 2006: (1) on April 10, 2006,
his Family Medical Leave Act (FMLA) rights were denied; (2) on May
24, 2006, management sent him for a fitness for duty examination; (3)
on June 6, 2006, management suspended complainant's ability to carry
firearms which impacted his work assignments; (4) on June 16, 2006,
management subjected him to a psychiatric examination; (5) management
threatened him with disciplinary action; and (6) on June 16, 2006,
management issued complainant a proposed 10-work-day suspension.
Both complaints were investigated. Thereafter, complainant requested
a hearing before an EEOC Administrative Judge (AJ) on both complaints.
The cases were assigned to an AJ. By ordered dated March 8, 2007, the
complaints were consolidated for further processing. Over complainant's
objections, the AJ assigned to the case granted the agency's motion
for a decision without a hearing. On September 29, 2007, the AJ
issued a decision without a hearing, finding no discrimination.
In reaching her decision regarding the non-selection at issue on Agency
No. 2004-0652-2006101743, the AJ found that even if the evidence were
viewed in the light most favorable to complainant, complainant failed
to demonstrate that his qualifications were plainly superior to those
of the selectee, so as to warrant a finding of pretext. The AJ found
that CPO (the selecting official) convened a three-member panel that
interviewed and ranked the candidates, recommending the eventual selectee,
an African American, as the top-ranked candidate. The AJ determined
that CPO followed the recommendation of the panel member. Complainant
alleged that the panel was influenced by a negative supervisory appraisal.
However, the AJ noted that the panel members maintained that appraisals
were not considered.
Regarding the harassment claim in Agency No. 2004-0652-2006102534,
the AJ found that complainant failed to show that any of the agency's
actions were motivated by race or reprisal-based discriminatory animus.
Specifically, the AJ found that complainant was sent to undergo a fitness
for duty examination because complainant was on leave from April 5 to
April 12, 2006, due to "extreme stress." The AJ noted that when it was
determined that complainant was fit for duty, he was returned to his
normal duties, including carrying a firearm. The AJ also found that
CPO informed complainant that he could be disciplined and that he did
issue complainant a Proposed 10-Work-Day Suspension because complainant
refused to return CPO's supervisory notes regarding another employee,
which had been mistakenly placed in complainant's medical file.
Complainant raises no new contentions on appeal. The agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim, 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 complainant
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).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
We find that the AJ's grant of summary judgment was proper because there
exists no genuine issue of material fact. Assuming, without deciding,
that complainant has established a prima facie case, complainant has
nonetheless failed to show that the agency's articulated reasons for its
actions were pretext for unlawful discrimination. CPO testified that
applicants were evaluated based only on their performance-based interview
questions, and that the panel members recommended the candidate with the
highest score. CPO followed the panel's recommendation. The record
reveals that the selectee received a score 66 points higher than
complainant because he answered the questions more directly and fully.
We find management's focus on the applicants' interviews questions was
not unreasonable on its face. 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).
Further, regarding complainant's harassment claim, we 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). Accordingly, complainant failed to establish
that discrimination or harassment occurred as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order.
The Administrative Judge's issuance of a decision without a hearing was
appropriate, and a preponderance of the record evidence viewed in the
light most favorable to complainant does not establish that discrimination
occurred as alleged.
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
August 3, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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