, III, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 20140120131413 (E.E.O.C. Jun. 3, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , III, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120131413 Agency No. 200J-0695-2012101933 DECISION Complainant appeals to the Commission from the Agency’s final decision dated February 5, 2012, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency’s final decision finding of no discrimination. BACKGROUND In his complaint, dated May 24, 2012, Complainant alleged discrimination based on disability (post traumatic stress disorder, spinal fusion, and spinal cord injuries) and sex (male) when in February 2011, he learned that he was not selected for the position of Medical Administration Specialist, GS-0301-7/10, vacancy announcement MP-11-003-424247-ML. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions 0120131413 2 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged nonselection. A Selecting Official (SO) indicated that Complainant was qualified and was interviewed for the Medical Administration Specialist position at issue but was not selected in March, 2011, because he ranked very low, 12th out of 15 applicants. Specifically, the SO stated that Complainant did not do well during the interview in demonstrating his relevant work experience. The SO stated that she selected a selectee because: she had been working at the facility for 25 years; had all of the medical experience necessary for the job; had outstanding references; had many awards; worked the off tours; and interviewed very well. Complainant claimed that he was overqualified for the position because his background skills and high education, i.e., he was an attorney with a Bachelor’s Degree in Social Work, worked as a police officer and “EMT,” and had experience in insurance with medical claims as an underwriter. However, we find that Complainant failed to show that the foregoing experience and his high education were required for the position at issue. We also find that Complainant failed to show that his qualifications for the position were plainly superior to the selectee’s qualifications or that the Agency’s action was motivated by discrimination. See Wasser v. Department of Labor , EEOC Request No. 05940058 (November 2, 1995). The SO also indicated that during the interview, Complainant misrepresented his work experience when he told her that he helped set up a veteran program with the Milwaukee County Court System since she knew that the program did not exist at the time of the interview in February 2011. On appeal, Complainant merely contends without evidence that at the time of the interview, he was indeed helping to establish the program which was officially established in 2013. We find that even if Complainant’s contentions were true, there is no evidence that the SO’s misbelieving Complainant’s statement at the time of the interview was based on discrimination as he alleged. Complainant also claimed that in February 2012, almost a year after the selection at issue, the SO made derogatory, inappropriate remarks about him to an individual saying that Complainant “was crazier than a bedbug.” SO denied making such a statement. Complainant also argues that the SO stated that she “works with a great group of girls” and that such a statement shows the selection was motivated by sex. We find that there is no persuasive evidence that the SO’s decision not to select Complainant was motivated by discrimination as he alleged. Even if these statements were made by the SO as alleged by Complainant, they do not, under the circumstances. show by a preponderance of the evidence that his claimed disabilities or sex were considered in the selection process. We note that on appeal, Complainant indicates that he was subsequently hired by the Agency in August 2011, and is currently working as a Rating Veterans Service Representative, GS-9, at the Agency’s Regional Office in Milwaukee. After a review of the record, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. We do not address 0120131413 3 in this decision whether Complainant is a qualified individual with a disability. Furthermore, we note that Complainant has not claimed that he was denied a reasonable accommodation. 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. 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. 0120131413 4 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 Date June 3, 2014 Copy with citationCopy as parenthetical citation