0120101143
06-29-2010
Harry E. Simmons, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Harry E. Simmons,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101143
Hearing No. 430200900083X
Agency No. 200406522008102339
DECISION
On January 12, 2010, Complainant filed an appeal from the Agency's
December 30, 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 Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission deems the appeal timely and accepts it 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 Chaplain at the Agency's Richmond, Virginia Medical Center. He
applied for the position of Supervisory Chaplain, was found qualified,
but was not selected.
On May 20, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
religion (Baptist), disability, and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when he was
not selected for the position of Supervisory Chaplain.
At the conclusion of the investigation into the complaint, the Agency
provided Complainant 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.
Over the complainant's objections, the AJ assigned to the case
granted the Agency's October 16, 2009 motion for a decision without a
hearing, and issued a decision without a hearing on November 30, 2009.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The instant appeal followed.
Briefly, the AJ found the following undisputed facts from the evidence
of record. Complainant applied for the position of Supervisory Chaplain
and was found qualified. The applications were then screened by a panel
of subject matter experts who placed Complainant and six others on a
list of best qualified applicants. An interview panel was convened,
consisting of eight members, who asked each of the applicants the same
questions. Following the interview, Complainant was ranked sixth of the
seven candidates interviewed by the panel. The final selection was made
by the Acting Director of the Medical Center, who selected a candidate
other than Complainant. The eventual selectee had a one-year detail in
a Supervisory Chaplain position, while her boss was stationed overseas.
The Selecting Official stated that her successful tenure in the position
was a key factor in her eventual selection. She was of the same race
and religion as Complainant.
One of the questions asked of Complainant and the other six applicants
was, "Describe a major change you have made in the past two years.
How did you accomplish the change? What difficulties did you encounter
and how did you work through the difficulties? What personal factors
assisted you in making the change? Would you do anything differently
if you had to do it again?" In response to the question, Complainant
detailed an experience in 2003 when he was serving as a supervisor within
the Agency's Clinical Pastoral Education Program. He was removed from
his position and the funding for the program ceased after a period of
turmoil with charges and counter-charges being lodged by the resident
staff assigned to Complainant and the police being called to investigate
an altercation that resulted. Complainant filed an EEO complaint over
the abolishment of the program and the elimination of his supervisory
authority. An EEOC AJ found no discrimination had occurred. In Appeal
No. 0120091185 (December 7, 2007), request for reconsideration denied,
Request No. 0520080263 (July 1, 2008), this Commission upheld the finding
of no discrimination. Complainant also explained to the interview panel
how he had quit the union after having differences with it.
The topic of his 2003 EEO complaint and his decision to quit the union do
not appear in the interview notes taken by the panel and no panel member
indicated that Complainant's ranking was affected by it. However, two
panel members did recollect the fact that Complainant raised the topic
and they conceded that it made them feel uncomfortable.
CONTENTIONS ON APPEAL
Complainant does not make any arguments on appeal.
ANALYSIS AND FINDINGS
We must 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.
In the instant case, the Commission finds that summary judgment was
appropriate. Complainant was given the opportunity to respond to
the Agency's motion and there was sufficient discovery undertaken.
Neither in response to the motion for summary judgment nor on appeal
has Complainant identified genuine issues of material fact that require
resolution at a hearing.
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 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 nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (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 a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review of the record, the Commission notes that the AJ properly
assumed at the summary judgment stage that Complainant had established an
initial prima facie inference of discrimination based on disability and
prior EEO activity.1 However, the AJ also correctly determined that the
Agency rebutted that initial inference of discrimination by presenting
evidence that showed that Complainant's application was screened out
in the later stages of the selection process because it was rated at
the lower end of the best qualified list as a result of the scoring
of the interview panel. The panel members elaborated on the basis of
their ratings in their affidavits. Moreover, the panel members and
Selecting Official asserted the selectee was judged the best qualified
candidate for the job because she had already served for a year as an
acting Supervisory Chaplain and had very positive recommendations.
Finally, we conclude that the AJ did not err in finding that Complainant
failed to show that the Agency's proffered reasons for its actions were
a pretext for discrimination. While Complainant asserted, at least at
one point during the hearing stage, that his discussion of his prior
EEO activity impacted on his rating by the interview panel, the evidence
does not support a finding of retaliatory animus. Complainant himself
raised the matter without prompting from the interviewers, who asked the
same generic question of each of the candidates. Moreover, the question
asked him to talk about an experience that had occurred in the last two
years, and Complainant went much further back to discuss his EEO activity.
There is simply no evidence of record or identified by Complainant that
indicates that the selection decisions made in this matter were motivated
by retaliatory animus.
Moreover, as detailed by the AJ, a review of the applications of
the Complainant and the selectee do not indicate that Complainant's
qualifications were so superior as to raise a question of pretext.
While the selectee was not ranked first by the interview panel, she
had been ranked first by the initial panel of subject matter experts.
She was also ranked higher than Complainant by the interview panel,
so that her references were checked, all of which were very positive.
As Complainant was ranked in the bottom segment of those interviewed, his
references were not checked. In sum, the evidence does not suggest, even
when viewed in the light most favorable to Complainant, that the Agency's
proffered reasons for the selection were a pretext for discrimination
or retaliation.
CONCLUSION
Based on a thorough review of the record the Commission AFFIRMS the
Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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 29, 2010
__________________
Date
1 As noted above, the selectee was of the same race and religion
as Complainant. There was no other evidence of record to suggest
discrimination on these bases.
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0120101143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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