0120161520
04-17-2018
Gilberto C.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gilberto C.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161520
Agency No. 200I06752015103306
DECISION
On April 11, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated March 10, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Librarian (Medical Sciences) manager, GS-1410-11 at the Agency's Wilmington VA Medical Center in Wilmington, Delaware.
On July 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (54) when on March 23, 2015, he learned that he was not selected for the Librarian Medical Sciences position, GS-1410-11, vacancy announcement no. ZY-15-MB-1319491-BU, located at the Medical Library in the Education Service of the Orlando VA Medical Center (OVAMC) in Orlando, Florida.
Medical Librarians develop authoritative collections, electronic and traditional, specifically targeted to the information requirements of OVAMC staff, so that information needs can be met clinically and cost-effectively, and serve as information experts, including doing complex searches, linking OVAMC staff to relevant information that facilitates decision making and encourages research and innovation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. The instant appeal followed.
Complainant contends that the selecting official (SO) (female, age 58) was biased against him, wrongly concluding that he had a negative attitude during his phone interview in which he placed the panel on hold twice. Complainant explains that he had warned the panel of possible interruptions since he was working alone that day, and argues the Agency's assessment of the referenced negative attitude is suspect given that it took the time, effort and expense to contact six clinical providers to inquire about him.
ANALYSIS AND FINDINGS
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). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra.
Complainant was employed as a Librarian with the VA since 1990. In March 2015, he applied for the position at issue. On March 11, 2015, Complainant was interviewed for the position by a panel which was made up of the SO (female, age 58) who was also the Supervisory Librarian at the OVAMC, and Panel Members 2 (female, age 52) and 3 (female, age 34).
That vacancy announcement indicated that applicants would be rated on six competencies, including the ability to incorporate customer needs in evaluating, developing, and managing information technology and databases; ability to evaluate and select emerging technology tools and databases, trends, and practices for library applications; and ability to plan and train clinical staff teaching access and use of library databases and online resources with application to clinical practice.
The SO stated that Complainant displayed a negative attitude during the interview, placed the panel on hold twice, and his references were not positive. In her interview notes which were organized by responses to each question asked, the SO noted repeatedly that Complainant's responses were negative - talking about downsizing, and once focusing on complaints without mentioning customer needs. In reaction to Complainant putting the interview panel on hold to wait on a customer, the SO noted this demonstrated the panel was not his priority, was poor customer service, he can't prioritize, and was inappropriate. The SO she stated that she chose the selectee (female, age 55) because she scored the highest on the interview evaluations, her communication was effective, she had a positive attitude along with "exceptional" references, and held a Master's Degree in Library Science along with library experience. ROI, Ex. B-2, at 4-5. Panel Member 2 stated that she recommended the selectee because she ranked first after the interviewing process was completed, was very knowledgeable during the interview, and stood out as being more computer/technology savvy than other applicants.
Complainant may prove pretext by presenting documents or sworn testimony showing that the reasons articulated by the Agency for their actions are pre-textual, i.e., not the real reason but rather a cover for sex or age discrimination. St. Mary's Honor Society, at 515, citing Burdine at 253. When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications for the position were plainly superior to those of the selectee. Hung P. v. Department of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to the Agency, comparative or statistical data revealing differences in treatment across gender-related lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).
The Commission has long held that an employer has discretion to choose among equally qualified candidates so long as the selection is not based on unlawful criteria, in this case sex and age. Complainant v. Department of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). An agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Complainant may be able to establish pretext with a showing that his qualifications were plainly superior to those of the selectee. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981).
Complainant's qualifications were not such to raise the specter of pretext based on his not being selected, nor does he show a nexus between his allegations of bias concerning the assessment that his interview was negative and his sex or age, or otherwise prove discrimination.
The FAD is AFFIRMED.
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.
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
April 17, 2018
__________________
Date
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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