Jake H.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionOct 17, 20180120170093 (E.E.O.C. Oct. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jake H.,1 Complainant, v. Peter O’Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120170093 Agency No. 200I-0010-2016101086 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 2, 2016, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Contract Specialist, GS-1102-11, on the Alvin York Campus of the Tennessee Valley Healthcare System in Murfreesboro, Tennessee. On January 14, 2016, Complainant filed an EEO complaint in which he alleged that the officials involved in a selection process for promotion to a GS-1102-12 Contract Specialist position discriminated against him on the basis of race (African-American) by not selecting him for that position. The selection process at issue in this complaint consisted of two phases: a Best-Qualified (BQ) Panel and an Interview Panel (IP). The Best-Qualified Panel members (BQPMs) reviewed and scored the application packages and referred the best-qualified applicants to the Interview Panel. 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. 0120170093 2 The Interview Panel members (IPMs) would interview the applicants and make their recommendations to the Selecting Official. The BQ Panel consisted of the Director of Contracting, who was also the Selecting Official (SO), the Deputy Director (BQPM2) and the Services Branch Chief (BQPM3). The IP included the Supply Branch Chief (IPM1), a Supervisory Contract Specialist (IPM2), and a Management Analyst (IPM3). The BQ panel reviewed all the applications against the announcement and scored the applications. Their individual scores were provided to the Administrative Officer (AO) who entered the scores on an Excel spread sheet. Internal applicants with the top 16 scores were offered interviews and referred to the interview panel. Three declined and thirteen were referred. The IP utilized an assessment tool of grading the applicants’ responses to core interview questions. The IP independently scored each applicant and the scores were provided to the AO who added the scores from the IP to the excel spreadsheet and presented the combined scores from the BQ and IP panels that were configured in descending order. Complainant scored 86 on the BQ and 71 on the IP which gave him an overall rank of 10 out of 39 applicants. Nine applicants scored higher than Complainant and were offered the position. SO informed Complainant that another candidate had been selected over him and that if any of the candidates declined, Complainant would be the next person selected. When two selectees above Complainant declined the position, Complainant became among the top 8 qualified candidates. On February 4, 2016, Complainant was offered the position at issue and he accepted the position the same day. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On July 6, 2016, Complainant requested a final agency decision without a hearing. In accordance with Complainant’s request, 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. 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. (Aug. 5, 2015) (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 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 0120170093 3 To prevail in a disparate treatment claim such as this, Complainant would have to satisfy the three- part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). As a first step, 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the Agency articulated a legitimate and nondiscriminatory reason for choosing the selectees, namely that in their assessment of the qualifications of the applicants, the selectees initially chosen were the best-qualified candidates. See 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 this explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). Beyond his own unsubstantiated and conclusory contentions on appeal, Complainant has presented neither affidavits, declarations, or sworn statements from witnesses other than himself nor documents that contradict the explanations provided by the SO and the other panelists or which call their veracity into question. We therefore agree with the Agency that Complainant has not sustained his burden to establish the existence of an unlawful motivation on the part of any official involved in notifying Complainant of his initial nonselection for the promotion at issue.2 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 2 Complainant stated that he wished to continue with his EEO complaint because he maintains that he had sustained harm and had been subjected to discrimination since the original notification of his non-selection. The Agency conceded that although Complainant was selected for the position, the notification of his original non-selection constituted an adverse action. Final Agency Decision, p. 2 & n. 1. However, the fact that the SO selected Complainant immediately after two of the candidates ranked ahead of him declined the offer clearly demonstrates the lack of a discriminatory motivation on the part of any member of the two panels. 0120170093 4 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. 0120170093 5 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 October 17, 2018 Date Copy with citationCopy as parenthetical citation